104 F. 728 | 8th Cir. | 1900
This action was brought more than eight years ago by H. A. Truskett, the defendant in error, against the Missouri, Kansas & Texas Railway Company, one of the plaintiffs in error, to recover damages incident to an alleged unreasonable delay in the transportation of about 180 head of cattle from Stevens Station, in the Indian Territory, to Paola, Kan. The ease did not reach a trial in the lower court until four years after the action was instituted, when it resulted in a verdict and judgment in favor of the plaintiff below for the sum of $893.66. The assignment of errors is very voluminous, embracing, as it does, 47 specifications of error. But many of the specifications are not noticed in the briefs, and no notice will be taken by this court of those which have been practically abandoned by failing to argue them.
in the course of the trial below there was some controversy at first as to whether the cattle were shipped to Chicago, Ill., by way of Paola and Kansas City, in pursuance of a verbal contract between the carrier and the shipper, or from Stevens Station, in the Indian Territory, to Paola, in pursuance of a written contract. It is conceded that the delay of which complaint is made occurred between the last-mentioned points on the line of the defendant’s road. Before the last-mentioned controversy was determined by the trial court, some evidence had been introduced tending to establish an oral agreement for the transportation of the cattle to Chicago; and some evidence had also been introduced as to the market value of the cattle at Chicago, Ill., at the time when they should have ar
The admissibility of the evidence in relation to the market value of the cattle at Chicago is challenged for another reason; that is to say, because the plaintiff below held the stock at Kansas City for one day after its arrival at that point before forwarding the same to Chicago. It is said that he had no right to detain the stock for an unreasonable length of time at an intermediate point, if he intended to market the stock at Chicago, and then charge the loss incident to a decline in prices to the defendant company. This proposition may be conceded as sound law, and so the trial court instructed the jury, telling them, -in substance, that, if the plaintiff desired to market his cattle in Chicago, he had no right to delay them in Kansas City in order to test the market there, and then, charge to the defendant any fall in the market price at Chicago while the cattle were so delayed at Kansas City. The fact seems to be that owing ,to the unusual time consumed in transporting the cattle from Stevens Station to Paola, Kan., they were very much in need of rest, feed, and water when they reached Kansas City, and had to be detained for some time before they could be prudently forwarded! to Chicago. Exactly how much time was necessary to give them the needed rest and care the evidence does not disclose-. The time consumed was.not so long as to justify a court in holding, as a matter of law, that by reason of the delay all evidence as to the decline in the market value of cattle at Chicago was inadmissible. We think that the jury were properly allowed to decide how far the plaintiff had disabled himself from charging the defendant with the loss incident to the decline in the market price of cattle at Chicago by the length of time the stock had been detained at Kansas City.
It is next urged that neither the plaintiff below nor his brother should have been permitted to testify as to (he market value of the cattle either at Kansas City or Chicago. This objection is founded upon the assumption that they were not sufficiently acquainted with the value of cattle at either of those places, or the condition of the market thereat, to express an opinion as experts. We are not able, however, to assent to this proposition. These witnesses, according to the testimony, had had fully 10 years’ experience in handling and shipping cattle. They had shipped cattle repeatedly during that period to the Kansas City market, and were familiar wills, the different grades of cattle, and had made it their business, like other stock-men, to keep themselves posted as to- the value of different grades of cattle by consulting the market reports and conferring with commission men who were engaged in buying and selling stock in each of the aforesaid, markets. They had far more knowledge concerning the value of cattle than is possessed by the average individual, and for that reason they were entitled to- express an opinion on the various points concerning which they were interrogated, namely, as to the market value of such stock as theirs on various days in July, 1892, after it was shipped, and as to the extent to which their cattle had shrunk in weight' and value as a result of hard usage on the
Some testimony was adduced in the course of the trial which tended to show that during the night following the receipt of the cattle the defendant’s track between Stevens Station and Paola, Kan., was rendered slippery by a heavy dew, which impeded the movement of the train, and occasioned the delay of which the plaintiff complains. On the strength of this testimony the defendant company asked the court to declare that if the train was delayed by a heavy dew, and the jury so found, there could be no recovery. Error is assigned because of the refusal of this instruction. We apprehend, however, that a common carrier of freight or passengers is bound to provide engines of sufficient weight and power to overcome the effects of a heavy dew, and that, if an unreasonable delay in the transportation of property or persons ensues from such an ordinary event as the fall of a heavy dew, it cannot shield itself from liability by the plea that its default was attributable to an act of G-od. A carrier must exercise enough diligence to overcome the effects of a dew falling upon its track, no matter how heavy the precipitation may be. It is only one of those ordinary manifestations of the power of nature against the effects of which human foresight'may and should provide.
It is finally claimed that an error was committed by the trial court in allowing interest on the amount of the recovery from August 3, 1892, which, as we infer, was the date when a claim for damage was preferred, and that the court of appeals in the Indian Territory erred in adding a penalty of 10 per cent, upon the theory that the appeal was frivolous or vexatious. Concerning the penalty that was imposed by the court of appeals, it is. quite sufficient to say that it was incumbent on that court to award the penalty on the affirmance of the judgment below, by virtue of section 1311, Mansf. Dig. (section 813, Ind. T. Ann. St. 1899), as this court held in Railroad Co. v. Elliott (C. C. A.) 102 Fed. 96. And, concerning the allowance of interest by the trial court, it is to be observed that, as this action was brought to recover damages for a breach of the implied contract of the carrier to transport the cattle over its road with reasonable celerity, we perceive no reason why the actual loss which was sustained by the shipper as .far back as July, 1892, should not bear interest from the date when the claim for damage was preferred. Nothing short of the actual amount of such loss, and interest thereon from the time it was demanded, will fully compensate the shipper for the breach of the agreement, and he is entitled to full compensation. In an action against a common carrier for failure to transport property in accordance with its contract, the general rule is to allow as damages the value of the property, with interest upon such value from the time when it should,have been delivered, if it is not delivered at all. Railroad Co. v. Estill, 147 U.
No other questions have been argued in behalf of the plaintiff in error which we deem it profitable to discuss. The case was tried somewhat irregularly, but all of the irregularities appear to have been waived by the action of the parties, and it is too late to challenge them in this court. Finding no error in the record, the judgment below is affirmed.