McDowell v. Missouri Pacific Railway Co.

ELLISON, J. Plaintiff shipped a car-load of cattle with defendant from East St. Lonis, Illinois, to California, Missouri. They were damaged by shrinkage, etc., by alleged negligent delay in the shipment and plaintiff brought this action for damages and prevailed in the trial court. The evidence showed delay several hours beyond a reasonable time in the arrival of the cattle, considering the distance from the place of shipment'. But there was no evidence of negligence. Mere delay does not establish negligence. Plaintiff proved delay, but not that it was occasioned by the negligence of which he complained in his petition. Having elected to bring his action on defendánt’s negligence, the onus was on him to show it. McCrary v. Ry. Co., 109 Mo. App. 567; Ecton v. Ry. Co., 125 Mo. App. 223; Anderson v. Ry. Co., 93 Mo. App. 677; Wernick v. Ry. Co., 131 Mo. App. 37, 52; Lay v. Ry. Co., 157 Mo. App. 467. These cases are founded on Standard Milling Co. v. Transit Co., 122 Mo. l. c. 276; Otis v. Ry., 112 Mo. 622, and Witting v. Ry. Co., 101 Mo. 631. ' ' ' An instruction for defendant in line with the law just stated was refused, for which the judgment will be reversed; and as plaintiff may be able to supply proof of negligence, we will remand the cause. All concur.