190 Mo. App. 181 | Mo. Ct. App. | 1915
Plaintiffs shipped two cars of cattle on defendant’s railroad from Sikeston and McMullin, Missouri, to the National Stock Yards, Illinois. There was an alleged negligent delay in the shipment so that the cattle did not arrive in time to be sold on the market of the day they should have been and extra shrinkage was caused and thus damaged' plaintiffs who were compelled to hold the cattle over for the next day’s market. Plaintiffs also had to buy extra feed to the amount of $6.80. Judgment was asked for $137:99, and a default judgment for that amount was rendered in the justice court. Upon trial anew in the circuit court ten jurors signed á verdict in plaintiffs ’ favor for $125. Defendant prosecutes this appeal and contends among other things that the trial court erred in refusing its proffered peremptory instruction.
The verdict being in plaintiffs’ favor, it is to the evidence most favorable to them that we must look. We take it, therefore, that the delay in transit occurred and that the extra shrinkage was as great as plaintiffs claim and that they paid out the money for extra feed and that the verdict for $125, if there is lia
The question for our determination, raised by the defendant when it offered a peremptory instruction, is as to whether there is any evidence whatever to support the charge of the petition that there was a negligent delay, for, unless that is shown to the extent of making out a prima-facie case in plaintiffs’ behalf, there is no liability. This conclusion is so. well founded upon decisions of our courts that an extensive review of what has been said on the subject would be entirely inexcusable. [See, McDowell v. Railroad, 167 Mo. App. 576, 152 S. W. 435; Hickey v. Railroad, 174 Mo. App. l. c. 411, 412, 160 S. W. 24; Gregory v. Railroad, 174 Mo. App. 550, 160 S. W. 830; Ridgway v. Railroad, 161 Mo. App. 260, 143 S. W. 532; Otrich v. Railroad, 154 Mo. App. l. c. 435, 134 S. W. 665; Decker v. Railway Co., 149 Mo. App. 534, 131 S. W. 118; Clark v. Railway Co., 138 Mo. App. 424, 122 S. W. 318; Wernick v. Railroad, 131 Mo. App. l. c. 52, 109 S. W. 1027; Ecton v. Railway Co., 125 Mo. App, 223, 102 S. W. 575.] The ground upon which plaintiffs must recover is that there was an unreasonable time consumed in transit due to defendant’s negligence, and “when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff.” [Witting v. Railway Co., 101 Mo. l. c. 639, 640, 14 S. W. 743; Stanard Milling Co. v. Transit Co., 122 Mo. l. c. 276, 26 S. W. 704.]
In the petition the plaintiffs alleged that twenty-four hours is the reasonable, usual and ordinary time required for such a shipment between the points mentioned, but in their testimony put it at from eighteen
The plaintiffs did not accompany their stock. Both cars were loaded about 12:00 or 12:30 o’clock, January 6, 1913, on the same train and moved out almost immediately. Plaintiffs’ witness Baker also had a shipment of cattle in this train, and accompanied his stock on that train as far as Crystal City, where he boarded a passenger train and did not see the cattle again until they were at the stockyards. There is no testimony as to the location of Crystal City, but it is a fact of which we take judicial notice that Crystal City is a town in Jefferson county (State v. Pennington, 124 Mo. l. c. 391, 392, 27 S. W. 1106; Comfort v. Ballingal, 134 Mo. l. c. 291, 35 S. W. 609; Johnson v. Hutchinson, 81 Mo. App. l. c. 304; Bishop v. Life Ins. Co., 85 Mo. App. l. c. 306), and that the boundaries of Jefferson county touch those of St. Louis county (State v. Pennington, supra) which adjoins the city of St. Louis, and the evidence shows that these cars were taken across the river from St. Louis to the National Stock Yards. So that it is shown that witness Baker was on this freight train during the greater part of the trip. He gave the following testimony: “There were no washouts or strikes or anything that I saw to prevent the train from running at its usual rate.”
One of the plaintiffs went to St. Louis the night of January the sixth on a passenger train over the same track that the stock traveled, and testified that “there were no wrecks, strikes or anything on the road to cause delay to these shipments that I could see; the passenger went through all right.” He did not know -when the cattle reached St. Louis nor when they reached the stockyards, but knew they were unloaded at two o’clock on the seventh, too late for that day’s market!
The evidence is somewhat confusing. Witness Baker testified: “They came in next day about two
The only evidence introduced by defendant was the deposition of a switchman employed by the Terminal Railroad Association of St. Louis who knew by referring to some record that he handled one of these cars. He stated that this stock was brought from St. Louis by the Terminal Railroad Association across the river to the “eastbound yard” in East St. Louis, and that he took charge of it there at 11:10 a. m. and reached the National Stock Yards with it at 11:15 a. m. and placed the ear he knew of handling at the chutes for unloading at two o’clock p. m. The reason he gave for the delay between'the time of arrival and the time of unloading was that there were several trains of stock .ahead of him.
Giving plaintiffs’ evidence the construction which it is entitled to receive, a finding would be justified therefrom that this shipment, allowing it a “reasonable time” according to one witness for plaintiffs, should have reached East St. Louis within sixteen, hours and that would have been at 4:30 a. m. January 7, 1913; or, taking the “reasonable time” testified to by the plaintiffs themselves (eighteen to twenty hours), the stock should have reached the stockyards by 8:30 a. m. Instead, if we take the most favorable construction of the evidence, it did not reach there until two p. m. Therefore, the shipment did not go through in a reasonable time and the delay must be said to have been unreasonable. But in the case of Winslow v. Railroad, 170 Mo. App. 617, 622, 157 S. W. 96, the court condemned an instruction given at plaintiff’s request
In Wright v. Railroad, 118 Mo. App. l. c. 395, 396, 94 S. W. 555, the shipment of cattle was from Trimble, Missouri, to Chicago, Illinois, via Quincy, Illinois, and arrived too late for the day’s market for which they were intended. The only evidence was that the
In the case before us the operatives of the defendant, the persons best able to explain the unusual delay, did not testify. (It may be observed at this place that this case is not governed by the act of the General Assembly of 1913 — Laws 1913, p. 177 — wherein it is provided that proof of the failure to transport live stock within a reasonable time shall constitute prima-facie
Appellant charges error in the instructions given. It must be conceded that plaintiffs’ first instruction fails to require a finding of negligent delay as prerequisite to recovery, but permits a recovery upon a. mere finding of delay. The cases cited by appellant clearly show that in this kind of action the petition, the evidence and the finding must be based and grounded on more than delay, namely, negligent delay. This instruction standing alone, therefore, would constitute reversible error. But under the facts of this case we do not believe the jury could have been misled. As before stated, the petition and evidence are sufficient in charging and proving a negligent delay. The defendant carrier denied that there was any delay, negligent or otherwise, until the shipment reached the National Stock Yards when it undertakes by its evidence to justify the admitted delay thereafter in unloading on the ground that there were other trains
For the reasons herein appearing, the judgment is affirmed.