55 Mo. 167 | Mo. | 1874
delivered the opinion of the court.
This was an action against the defendant as a railroad common carrier, for non-compliance with a contract of affreightment. The goods consisting of house castings intended to be put in a brick house then being erected by plaintiff at Versailles, fifteen or twenty miles from Tipton, were shipped at Boonville, Missouri, to be carried by defendant to Tipton, about twenty-six miles.
The goods arrived at Tipton the same day they were shipped, but by the carelessness of defendant’s agents, were left in the car and went on through to St. Louis, where they remained for several days, and were not delivered at Tipton till twelve days after the time they should have been delivered. When delivered at Tipton they were in the same condition as when shipped. The plaintiff had sent several times for the goods before they were delivered, at an expense of five dollars per trip. When they were delivered at Tipton, the defendant’s freight agent at its depot received them, and on the next day
There were three counts in the petition all on the same contract of affreightment for the transportation of the same castings. The first count charged, that by means of the carelessness of defendant in the transportation of the goods, they were wholly lost to plaintiff. The second count was similar to the first, charging that the goods were not delivered in a reasonable time, or in any other time, and were wholly lost to plaintiff. The third count charged that the goods were intended for a house then being erected by the plaintiffs; and were so unreasonably delayed in the transportation, that when delivered to plaintiffs they were valueless for the purpose for which they were bought, and only tvorth $10, the price of old iron. The plaintiffs charged that by reason of such delay in transportation, they were compelled to expend seventy dollars in sending and searching for the goods. The answer denied the material allegations of the petition. Upon the trial the evidence tended to show that the manufacturer’s price of the castings were about $102, and that they would be valueless to plaintiffs, but might be used for another house of the same dimensions. There was no evidence to prove what the market or other value was, at the place of delivery. There was no notice given by defendant to the plaintiff of the delivery of the goods at Tipton. This in substance was all the testimony. Each party asked several instructions, some were given and others refused.
I shall only notice such as present the point relied on here for a reversal. By the third instruction given for plaintiffs, it was declared “that if the jury believe from the evidence that defendant received the goods in controversy, at the place, and to be delivered at the place charged in the complaint in a reasonable time, and that the goods were received at the place of delivery out of time, by the agent and at the depot
The first instruction referred to was refused ; but the rule for estimating the-damages in that instruction which is made a part of the third instruction above copied, is “that if by such failure to carry and deliver the said goods they were rendered valueless to plaintiffs, then the plaintiffs were entitled to recover the value of said goods at the place of destination together with whatever amount of money they have expended in trying to recover the same, with six per cent, interest from the time they should have been delivered.”
The second instruction given for plaintiffs entirely ignores the delivery of the goods, but lays down the rule for estimating the damages in the same way as the third. The second and third instructions asked by the defendant and refused by the court were to the effect, that in the absence of any notice to defendants from plaintiffs at the time of the shipment, that there was a necessity for punctual transportation and delivery of the goods, the defendant would not be liable for the delay which occurred in the delivery. The third instruction asked by defendant and refused, was to the effect that although the goods did not arrive in time, yet if they were in good condition and were received by the plaintiffs or their agents, the plaintiffs were only entitled to recover whatever they may have necessarily expended in time and money in endeavoring to get the castings.
The jury found a verdict for $128.86, on which judgment was rendered for plaintiffs. Motions for new trial and in arrest, saving the points passed upon, were duly made and 'overruled and exceptions saved. It is manifest from this statement, that the whole contest was on the third count of the petition which admitted the delivery of the goods, but charged that they were so unreasonably delayed that they were of no use or
The rule in respect to notifying consignees of the arrival of goods does not apply to railroads, where the- goods are delivered on time. They are not required as carriers by wagon to deliver at the place of business or house of the consignee; nor as carriers by water, to notify the consignee of the arrival at the wharf. Their route is confined to the track, and the delivery must be at a depot or by the roadside, and if there be no one to receive them they may store them without charge for a reasonable time till the consignee calls for them. It is the duty of a consignee to do so without notice, as the usual certainty of the arrival of the train renders such notice unnecessary. (See Morris & Essex R. R. Co. vs. Ayres, 5 Dutch., 393; Norway Plains Co. vs. Boston & M. R. R. Co., 1 Gray, 274.)
Judgment reversed and cause remanded.