173 Mo. App. 210 | Mo. Ct. App. | 1913
—Plaintiff obtained judgment for $ 509.50 as damages to twenty-three head of mules belonging to him and which he shipped from Webb City, Mo., to East St; Louis, 111. Defendant brings its appeal to this court, alleging error in the refusal of the trial court to give a peremptory instruction in its behalf, and in the action of the court in admitting testimony touching the handling and caring for the animals subsequent to their arrival in East St. Louis.
The court, over defendant’s objection, admitted evidence as to the expense of shipping the mules back to Webb City. The admissibility of this evidence becomes apparent in view of the fact that there was testimony to the effect that these nine mules could not be sold in East St. Louis, and by shipping them back to Webb City, and after getting them restored, was possibly the cheapest way out of the loss; and to make the loss as small as possible‘was the duty imposed upon the plaintiff. [13 Cye. 78.—]
Appellant contends that in a suit charging negligence-on the part of the defendant, mere proof of delay is no evidence of negligence, and cases cited in appellant’s brief uphold this theory. However, in this case, where no one accompanied the mules, and because of the delay being wholly within the knowledge of the railroad company, coupled with evidence of the unusual delay of fifty-four hours—with evidence to the effect that other trains were running over the track— that no wrecks or obstructions were visible—with slight evidence of the mules having been sidetracked at Tip-ton—that the agents of the company who were applied to at both ends of the line did not know where the mules were—certainly brings this case within the rule laid down in other cases in this State that in such a shipment and with such an unusual delay, only slight evidence of negligence is sufficient to support a finding that the delay in transportation was unreasonable. Such facts as detailed are sufficient to raise a fair inference of negligence—which is enough. See, Lay v.
All the evidence which tended to show the cost of placing the mules in a saleable condition and the costs and expenses of earing for them and thereby reducing the loss to the minimum was admissible, not to fix the measure of damages, but as evidence from which the jury could draw inferences as to the depreciated condition of the mules on their arrival in East St. Louis. [See, Matney v. Railway Co., 75 Mo. App. 233.) In this connection it is observed that neither side asked an instruction fixing the measure of damages.
The contract for the shipment of these mules, in consideration of a reduced freight rate, limited the loss to one hundred dollars per head and provided that in case of injury or partial loss the amount of damage claimed should not exceed the same proportions. The court
There was some testimony introduced by the defendant to the effect that the plaintiff had stated his claim prior to bringing suit and had put his loss on the mules at five dollars per head. Plaintiff explains this by saying that he told the agent at Webb City when he was preparing a claim for the purpose of making a settlement with the railroad company that the price he received for the mules was five dollars less on each mule than the price he had originally paid for them, but he explained that this five dollars did not cover the profit due him on the mules and which he would have received had they reached their destination on time.
The appellant complains of the action of the court in permitting the plaintiff to testify as to his personal-time occupied in looking after the mules—that his time was worth ten dollars per day on the market. This assignment of error we consider well taken, fas plaintiff, at most, should be permitted to show the expense of putting the animals in a marketable condition and this only as tending to prove the ultimate fact of their condition when they reached their destination. If it required a man’s time to place them in a market
The objection clearly was that such evidence was incompetent and irrelevant and not a proper measure of damages; and there was manifestly no attempt to mislead or trap the court in any way, the purpose and theory of the objection being clearly understood by the court and attorneys. On cross-examination, the plaintiff testified as follows: “Q. You were conducting your livery business all the time after you came back? A. Yes, sir; most of the time. Q. You didn’t give
Permitting plaintiff to testify that his time was worth ten dollars per. day and that he put in twenty days was manifest error. The judgment will be allowed to stand only upon condition that respondent within ten days from the date on which this opinion is filed enter a written remittitur with the clerk of this court of two hundred dollars of the judgment; otherwise, the judgment will be reversed and the cause remanded for a new trial.