168 Mo. App. 168 | Mo. Ct. App. | 1912
This is an action prosecuted by a shipper of perishable property to recover damages resulting from negligent delay in the transportation of the shipment. The cause pleaded in the petition and submitted to the jury is founded on a breach of ■defendant’s common law duty. The answer in addition to a general denial pleads a written contract of affreightment which by its terms restricted defendant’s liability to its own line and alleges that the negligent delay, if any, occurred on the line of a connecting carrier. A trial of the issues resulted in a verdict and judgment for plaintiff aiid the cause is here on the appeal of defendant.
In the afternoon of December 15, 1909, defendant received from plaintiff at Unionville, Mo., a carload of dressed poultry consigned to a firm of commission merchants in Philadelphia and undertook to transport the shipment to its destination via the Baltimore and Ohio Eailroad. A shipping contract was entered Into which called for a through shipment and imposed ■certain restrictions on defendant’s common law liability, but we do not understand counsel for defendant as contending in their briefs that defendant should not be held liable for the injurious results of a negligent delay whether such negligence occurred on defendant’s line which ended at Chicago or on the lines of the connecting carriers. Their main contention is "that the evidence of plaintiff fails to show a negligent delay at any stage of the transportation and, therefore, that the court erred in sending the case to the jury. There is evidence tending to show that in the present instance two days were added to the time usually required for theMransporation of such shipments. The car was run from Unionville to Chicago on schedule time and there was no unusual- delay on the line ■of the Baltimore and Ohio Eailroad Company. The lost time occurred at Chicago while the car was in the possession of the Belt Line Company. More than
The gravaman of plaintiff’s cause of action is negligence and the burden is On plaintiff to prove not only an unusual delay in moving the car at Chicago but that such delay was negligent under all the circumstances of the case. Proof of an unusual delay is not proof of negligence since such delays often result from accidental or unusual causes which reasonable care would not anticipate. [Cunningham v. Railroad, 79 Mo. App. 524; Lay v. Railroad, 157 Mo. App. 467; Ecton v. Railroad, 125 Mo. App. 223.] But given the fact of an unusual delay, slight evidence of neglect will suffice to take to the jury the issue of whether the delay was negligent or excusable. [Holland v. Railroad, 139 Mo. App. 702; Gilbert v. Railroad, 132
If this car of valuable and perishable merchandise became lost in the yards of the Belt Line Company, such fact, if unexplained, would support an inference that the delay was due to negligence since railroad companies must systematize their business, and it would be a poor system indeed that would not keep track of important affairs of the business. If, on the other hand, the delay was due to extraordinary weather conditions which retarded the movement of cars and congested the terminal yards at Chicago while the shipment was there, such delay should not be regarded as due to negligence but to causes reasonable care would not anticipate and obviate. The argument of defendant that no negligence is shown, when fully analyzed, is found to rest on the verity of the traffic manager’s testimony to the effect that an unavoidable congestion of the yards at Chicago was the cause of the delay. But our view of that evidence is that it merely raised an issue of fact for the jury to determine. We would not be justified in accepting it as conclusive in the face of facts and circumstances which point to negligence as the true cause of the delay and, therefore, contradict the testimony of the traffic manager. Moreover his version of the occurrence is marked by intrinsic defects the jury were entitled to consider and weigh. Por example, if, as he states, the yards became congested on December 13 because of the sleet storm, and the movement of ears was brought to a practical standstill, the query of counsel for plaintiff becomes quite pertinent, Why did defendant two days later receive the- shipment in controversy without notifying plaintiff of the existence of a condition at Chicago that would cause delay in the transportation? As we said in Russell v. Grain Company, 114 Mo. App. l. c. 496, the carrier is not expected to perform the impossible and may re
The evidence, as a whole, presented the pleaded issue of defendant’s negligence as one of fact for the jury to determine and the court did not err in overruling the demurrer to the evidence.
Point is made that the instructions given at the request of plaintiff did not properly define the negli.gence for which plaintiff was entitled to recover his resultant damages, but we think the instructions are sufficiently definitive. If defendant desired a more specific definition it should have requested it in its own instructions.
We deem the criticism of plaintiff’s instruction on the measure of damages too hypercritical to call for specific notice. The case was fairly tried and the judgment is affirmed.