| Mo. | Jul 15, 1872
delivered the opinion of the court.
This was an action on a contract of affreightment, whereby the defendant, at the town of Bunceton, received.a-quantity of hogs belonging to plaintiff on its cars, and agreed to deliver them at St. Louis in a reasonable time. The plaintiff gave evidence conducing to prove that the hogs were not delivered in due time, and that, if the hogs had béen delivered in time, they would have brought more in the market by twenty cents .on the hundred pouhds than when actually delivered, and that by the delay the hogs had shrunk in weight.
The defendant offered to prove that the delay was owing- to the fact that they had not on hand at the place of shipment a proper locomotive; that the one c that was there was made-to burn coal and they were using wood on it, and it would have set the ears on fire-if-used to move the hogs; and offered to-prove that as soon as they could get a: proper locomotive to the place, the hogs were moved and delivered at St..Louis. All this evidence, consisting-of depositions and oral testimony, was rejected by the- court.
The court then instructed the jury,-at the-instance of the plaintiff,, to the effect that when the defendant-made the contract and received the hogs it was its duty to have ready the proper machinery, .etc., to carry the hogs without unnecessary delay to the place of destination, and that-the want of proper machinery was no excuse, and the court refused to give counter instructions asked by the defendant. The court also instructed that the measure of damages was the difference in the price-of hogs when they ought to have been delivered and when they were --actually delivered at the plaoe of destination*-and the. shrinkage occasioned by the delay.
The jury-found a verdict for the -plaintiff*: and the defendant' filed a motion -to set it aside, which was overruled.
1 have examined this record with care, and can see no fault in any of- the rulings of the Circuit Court. When a common carrier like this railroad company receives freight on board of- its cars to forward, it becomes its duty to send it without delay. It was its duty to look to its machinery, to see if it was in proper
Let the judgment be affirmed.