Yount v. Wabash Railroad

| Mo. Ct. App. | May 3, 1909

ELLISON, J.

This action was instituted to recover damages resulting to plaintiff in the delay in complete transportation of a carload of nursery stock from Brunswick, in northern Missouri, to Springfield, in southern Missouri. The judgment in the trial court was for the plaintiff.

It appears that plaintiff had taken orders of a number of people in the vicinity of Springfield for delivery to them at Springfield of various kinds of fruit trees on Tuesday, October 29,1907. The car was loaded at Brunswick in the afternoon of Wednesday preceding. Defendant’s agent at Brunswick was notified of the purpose of the shipment and that it would take some time after arrival of the car at Springfield to unload and prepare the stock for delivery to the several purchasers as agreed upon with them. It is of no consequence to look into the precise time that the car got into Springfield since it is conceded to have arrived in due time. The complaint is as to delay in the delivery to plaintiff. His agent called at the railway office early Monday morning; he found the car was in the freight yards, whereupon he paid the freight and was assured “the car would at once be set on the team track where it could be unloaded.” Men and drays were then sent to • the team track by plaintiff’s agent, but the car was not at hand. The railway was repeatedly notified, but to no purpose, when, after two days, plaintiff’s agent by paying a “switch boy” a dollar, was successful in getting the car placed. Plaintiff’s customers called for their purchases on Tuesday and on Wednesday, as many as could be induced to do so accepted their purchases, but those not supplied on Wednesday refused to accept delivery after that. The evidence tended to show loss and damage to the plaintiff, the detail of which need not be stated since it was fully as much as the amount of the verdict.

The instructions in the case set forth for each party, in clear terms, the theory of each. Those for plaintiff required not only that the shipment should arrive at Springfield in a reasonable time, bnt that it should be delivered to plaintiff by being placed so that he might be able to unload it. [Russell Grain Co. v. Railway, 114 Mo. App. 488" court="Mo. Ct. App." date_filed="1905-11-06" href="https://app.midpage.ai/document/russell-grain-co-v-wabash-railroad-6621801?utm_source=webapp" opinion_id="6621801">114 Mo. App. 488; Commission Co. v. Railway, 80 Mo. App. 164" court="Mo. Ct. App." date_filed="1899-04-24" href="https://app.midpage.ai/document/d-klass-commission-co-v-wabash-railroad-6619329?utm_source=webapp" opinion_id="6619329">80 Mo. App. 164.] There is nothing in the point as to defendant’s liability being only that of a warehouseman. Its liability as a carrier continued until the discharge of the goods from the car. [Buddy v. Railway, 20 Mo. App. 206" court="Mo. Ct. App." date_filed="1886-01-04" href="https://app.midpage.ai/document/buddy-v-wabash-st-louis--pacific-railway-co-6614973?utm_source=webapp" opinion_id="6614973">20 Mo. App. 206.]

There were some other points presented to which we need not refer further than to say that there is nothing in the record which justifies the appeal, and we affirm the judgment.

All concur.