Sturgeon v. St. Louis, Kansas City & Northern Railway Co.

65 Mo. 569 | Mo. | 1877

Napton, J.

The judgment in this case must be reversed, because the petition stated two separate and distinct causes of action, upon which a general, verdict was rendered, and the motion in arrest of judgment specifically directed the attention of the court to this objection. Owens v. H. & St. J. R. R. Co., 58 Mo. 394, and cases there cited.

The first instruction given by the court for the plaintiff, is objected to, as leaving to the jury to determine a question of law, but this construction of it seems rather hypercritical. It speaks of the defendant as a common carrier, but proceeds to state what responsibilities the defendant incurred in that capacity, so far as the case in hand required and to assert that notwithstanding the special contract which had been read in evidence, the defendant was still responsible for any “ negligence, misconduct or carelessness resulting in loss to the plaintiff.” And this was in conformity to the doctrine repeatedly maintained by this court. The next instruction points out the measure of. damages which in the event that the negligence of defendant was the cause of them, is stated to be “the difference in the market worth of the hogs when they ought to have been delivered, and when they were actually delivered.” To this no objection is made; but the court proceeded further to declare that in addition to this, the plaintiff was also entitled to “ the value per pound gross weight of the difference when they ought to have been delivered, an d when they were actually delivered,” and this portion of the instruction is obj ected to upon the ground that the difference in the market value of the hogs when delivered and when they ought to have been delivered, covers the entire loss. But we do not understand how the damages occasioned by the decline in the market value could cover a loss occasioned by shrinkage. Of course the instruction must be understood as only intended to give the plaintiff the difference between the amount of shrinkage which would have occurred had the train gone through in the usual time and that which actually happened. It was proved, or at least there was evidence to show, that the shrinkage between "Wellsville (where the hogs were delivered for transportation), and St. Louis, their place of destination, was usually about six pounds, whereas the actual shrinkage in this case was about twenty pounds per head. The damages, therefore, authorized by the instruction, supposing the testimony on the subject to have been satisfactory, would have been the value of fourteen pounds, and not of the entire shrinkage.

It seems that three of the hogs died in the car, of suffocation. By the special contract between plaintiff and defend- and, it was agreed that defendant should not be responsible for any loss “by suffocation or other injury caused-by overloading cars.” It appeared that after the hogs were put on the cars at "Wellsville, the train was detained at that place between seven and nine hours, that the weather was extremely cold, and that three of the hogs died of suffocation by piling up together before the train started. The instruction of the court in regard to these hogs that died of suffocation, was, that plaintiff was entitled to the difference in the value of the three hogs when alive and, when dead at St. Louis.” The dead hogs were sold for $1.50 per ewt., and the live hogs at $3.75. This measure of damage was correct, if it was found that the suffication was traceable to the unnecessary or negligent delay of the train, but not otherwise; and whether it was so occasioned was a question for the jury, and the instruction should have been so modified as to leave that question to the determination of the jury. The second instruction asked by the defendant on this point was properly refused.

In regard to the lost liogs, the instruction given for the defendant is correct, and the only objection to the verdict on this head is, that there was no evidence to support it. As the judgment must be reversed on other grounds, it is unnecessary to consider this objection. The record presents no question in regard to allowing interest in the assessment of damages, a point discussed in the briefs of counsel. There is no mention of interest in any of the instructions, and the court, in its judgment, simply allows six per cent, interest on the judgment which our statutes directs, and which would follow if nothing had been said by the court on the subject. 1 Wag. Stat., p. 783, § 3. Judgment reversed and cause remanded.

The other judges concur.

Reversed.