Wright v. Chicago, Burlington & Quincy Railroad

118 Mo. App. 392 | Mo. Ct. App. | 1906

ELLISON, J. —

This is an action for damages on account of alleged negligent delay in the transportation of cattle to the Chicago market. The trial court gave a peremptory instruction to allow the plaintiff only nominal damages. The plaintiff’s motion to grant him a new trial was sustained and from that order defendant has appealed.

It appears that plaintiff shipped over defendant’s road seven carloads of beef cattle from Trimble, Missouri, to Chicago, Illinois. That four of the cars were consigned to Strahorn-Hutton-Evans Commission Co., and the remaining three to the Lee Live Stock Commission Co., each Company doing business at the Union Stock Yards at Chicago. The evidence tended to shoAV that the cattle were loaded at Trimble into a special cattle train and left that station at five o’clock of the evening of October ' 5, 1903, and arrived at Quincy next day, several hours after the usual time for making that station. That they left Quincy in the afternoon and arrived at Chicago after one o’clock p. m., when they should have gotten there at about nine o’clock in the morning. That in consequence of the delay in getting into Quincy there was no time for unloading, resting and feeding the cattle before starting on for Chicago. The evidence tended to show a delay in the rnn from Qniney to Chicago of from three to four hours and that in consequence plaintiff failed to get the cattle on the favorable market of that day. The result was that both lots of cattle were held over, those consigned to the Lee company until the next day (the 8th of October) when they were sold, and those consigned to the Strahorn company until the following Monday, the 12th of the month. They were sold on the 8th and the 12th, but at less than if they had been transported with ordinary dispatch and sold on the morning market of the day of arrival. That this loss to the plaintiff was occasioned by the fact that the cattle by being delayed were deprived of the usual time for rest, water and feed at Quincy, whereby they shrunk in weight, and by further delay were not put into Chicago in time for the early and favorable market of the day of arrival. Without further detail, we will say that there is no doubt but that plaintiff made a case for the jury on the question of the delay and the defendant’s negligence. So neither is there any doubt but that he made out his case as to the loss to him as a result of such negligence. The trial court concluded that an injustice had been done plaintiff in confining him to nominal damages only.

And, in our opinion, plaintiff was entitled to recover substantial damages unless he is to be barred of such claim by the following consideration. In the first place, we will state that notwithstanding mere delay is not evidence of negligence in transportation (Standard Milling Co. v. Transit Co., 122 Mo. 275-6) yet, where the fact of delay is supplemented by evidence of the cause, it may show that it was negligence. This was explained in McCrary v. Railway, 109 Mo. App. 567; the evidence here being of the same general character of the evidence in that case. See also Anderson v. Railway, 93 Mo. App. 677.

In order to show the weight of the cattle, the plaintiff not having personally weighed them, resort was had to the weight as given by the stock yards company, which was taken from what is known as the “scale tickets” containing the weights. It is the custom of the commission companies operating at the stock yards at Chicago to receive the scale tickets of weight and enter them upon their books as the basis upon which to rest the book account of sales for customers, and by which they settle with such customers, and for freight charges made by the carrier. It was shown that the books were made up at the time from the original tickets. Such books of original entry are admissible in evidence even though they are books of a company, who in the transaction in controversy is the agent of him who offers them. [Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205; Commission Co. v. Bank, 107 Mo. App. 426.] But in the present case the books were not produced. They were in another State beyond the jurisdiction of the trial court. It is therefore proper to receive verified copies, which are made exhibits in depositions taken. [Brown v. Wood, 19 Mo. 475; Lumber Co. v. Lumber Co., 39 Mo. App. 214.]

Something was said in the testimony as to carbon copies of the scaie tickets. This, we understand to mean several copies made at one writing of the weight upon the paper ticket. Such carbon copy is practically an original and there can be no objection to receiving it as evidence. [1 Elliott on Evidence, sec. 208.]

The contract of shipment provides that no “loss or damage to said animals” should be allowed unless a written claim be made within ten days. None was made in this case. But under the provisions of the contract providing for notice of damage within ten days after the animals leave the cars, means, of course, damage before they left the cars, and the want or notice could therefore only release defendant from plaintiff’s loss by shrinkage while en route. There is no ground of excuse for defendant’s release from his remaining claim for loss of market and expenses consequent upon the delay. The provisions of the contract here in that of Leonard v. Railway, 51 Mo. App. 293, differ from the provisions of the contracts in Hamilton v. Railway, 80 Mo. App. 597, and Smith v. Railway, 112 Mo. App. 610.

We are satisfied with the propriety of the court’s action in granting a new trial and the judgment will be affirmed.

All concur.