Leonard v. Chicago & Alton Railroad

Ellison, J. — This action is for damages, as is alleged, by the defendant’s negligent delay of plaintiff’s cattle while in transit from Mt. Leonard, Saline county, Missouri, to Chicago, Illinois; whereby plaintiff was compelled to sell on a lower market than he would have sold on had there been no negligent delay by defendant. Judgment was for plaintiff. The case was before us about a year ago and is reported in 54 Mo. App. 293, where will be found a full statement of the facts which gave rise to the litigation. On the return of the case to the trial court plaintiff amended his petition in order that it might more nearly conform to the view of this court as expressed in the opinion referred to. The amendment was properly made. While the amended petition is not as specific, in its charge of negligence, or rather as to what' was the negligence complained of, yet it does sufficiently appear that- unnecessary delay in the transportation is the ground of complaint. We consider the petition as quite sufficient, since defendant took issue therewith by filing an answer thereto. Foster v. Railroad, 115 Mo. 177. There was evidence the tendency of which was to prove that defendant ran special or extra live stock trains through from points in Saline county, Missouri, to Chicago, Illinois, and that they customarily made the run in from 20 to 24 hours and in time for the market of the day following the shipment. There was also evidence tending to show unnecessary and negligent delay in running and operating the train upon which [372] plaintiff’s cattle were loaded, in consequence of which the cattle failed 'to arrive in time for the market of the day following their shipment. Defendant calls to our attention a provision in the contract of shipment which provides that when the defendant delivered the cars containing the cattle on the tracks of the Stock Yards Company at Chicago, all liability on defendant’s part for loss or damage which might thereafter arise from any cause whatever should cease. The evidence tended to show that defendants had no station of its own at Chicago for the purpose, or suited to the purpose, of unloading cattle, and that, for the purpose of getting live stock to the stock yards where chutes and pens were provided for the unloading of cattle, defendant ran its trains over the track of the stock yards company; that they used their own trainmen for this purpose, using one of defendant’s switch engines; and in this instance there was evidence tending to show delay while on the tracks of the stock yards company. On this subject the defendant asked an instruction literally covering the exemption for loss or damage from any cause, as provided for in the contract. The court refused the instruction in such broad terms, but gave it by inserting therein a qualification as to defendant’s negligence. In thus amending the instruction the court acted correctly. The train was defendant’s train and was managed by defendant’s train crew. If, therefore, the defendant or its servants were guilty of any negligence which caused delay on the stock yards track, defendant should not be excused, for it, notwithstanding the contract. The instruction, as amended, made no mention or reference to the negligence of any one connected with the stock yards. We have noted defendant’s point as to a variance between the petition and plaintiff’s proof as to the point of destination of the cattle shipped and believe it [373] to be untenable. We are also of tbe opinion that instructions numbers 8 and 11, of the refusal of which defendant makes complaint, were properly refused. Number 8, was not justified by the evidence, since that showed this train was under the control and management of defendant’s servants while on the stock yards track. We do not consider that the testimony of witness Tracy contradicts this. Number 11, amounted to a direction to find for the defendant, if the delay occurred on the stock yards track without regard to whether the delay was occasioned by defendant’s negligence. The provision of the contract noticed and construed when the case was here before concerning the time within which the transportation should be made, is again earnestly pressed upon our attention by counsel for defendant. After a further consideration of that clause of the contract, we have not been able to bring ourselves to conclude that the view we before expressed is erroneous. The contract provides that “the schedule time of freight trains on the time card of said company, in force at this date, with 12 hours added thereto, and not including time lost by stops for feed, water, rest, or for proper and humane care of any live stock carried in the same train, is a reasonable time for the transportation of said stock under this contract, and if the stock shall be transported within that time, the second party agrees not to make any claim for damages from delay in transit and that the said first party shall not be liable therefor.” We do not care to amplify what we stated in this connection on this subject when the cause was here before and will .content ourselves with the mere statement of our adherence to what we there said. There are other points made by counsel against the action of the trial court, some of which are included [374] within what we have already said. But a full consideration of the entire case has satisfied us that there has been no error committed affecting the rights of the parties and we hence affirm the judgment. All concur.