Ballentine v. North Missouri Railroad

Fagg, Judge, delivered the opinion of the court. The law defining and regulating the duties of railroad companies as common carriers, is so well settled now as to admit of little doubt or controversy. As preliminary, however, to the determination of the questions involved in this case, it may be stated that the laws of the State require each railroad corporation to “furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation,” <fcc.—R. C. 1855, p. 435, § 44. The sufficiency of such accommodations must be determined by the amount of freight and the number of passengers ordinarily transported on any given line of road. The duty of a company to the public, in this respect, is not peculiar to any season of the year, or to any particular emergency that may possibly arise in the course of its business. The amount of business ordinarily done by the road is the only proper, measure of its obligation to furnish transportation. t If by reason of a sudden and unusual demand for stock or produce in the market,' or from any other cause, there' should be an unexpected influx of business to the road, this obligation will be fully met by shipping such stock or produce in the order and priority of time, in which it is offered—Galena & Chicago R.R. Co. v. Rae et al., 18 Ills. 488; Weibert v. N. — 501 — Y. & Erie R.R. Co., 19 Barb. 36. Any other construction of the statute would be unjust to the railroad companies without benefiting the public. It Seems to have been the theory upon which the petition proceeded in this case, that it was the duty of the defendant to have shipped the live stock in the order of time in which it was offered with reference to the entire line of its road, and not to any particular station. This is altogether unreasonable, and in its practical operation would work great hardships upon all companies. Its duty in this respect, then must be understood in reference to each particular station, and not to the operation of the road as a whole. Whilst it may be difficult to lay down any general rule upon this subject sufficiently accurate in its terms to cover all cases that may possibly occur, still we think it can be approximated by saying that its means of transportation must be so distributed at the various stations for receiving passengers and freight along the entire line of its road, as to afford a reasonable amount of accommodation for all. Or,, to state it .differently, no one station 'should be furnished with means of transportation to the prejudice of another, but a distribution should be made among all in something like a just proportion to the amount of business ordinarily done at each. Its duty is to receive all freight that may be offered, and within a reasonable time, and in the order in which it is offered, to transport the same to any other point on the line of its road that may be designated by the owner or other person having charge of it. This duty to the public must be performed in good faith, and without partiality or favor to^any one. Every individual in the community, by complyihg with the prescribed rules and regulations of the company, has an equal right to demand the performance of this duty, and the law does not excuse a discrimination in this respect any more than it does a discrimination in .favor of any particular station on the line of its road. In every proceeding, therefore, against a railroad company for neglect of its duty, either in receiving or shipping freight in the order — 502 — in which it is offered, the good faith of its conduct - in the matter complaind of is a proper subject of inquiry, and if found to be wanting, should receive the severest condemnation and censure from the courts of the country. The petition contains five counts, charging the defendant with neglecting its duty in failing and refusing to receive for shipment a large number of hogs offered at one of its stations called Allen, and also for failure to deliver a lot of dead hogs, and for failure to deliver, in a reasonable time and in good order, a certain lot of dressed hogs, all shipped at said station for the city of St. Louis. The first alleged a special contract for the shipment of a large number of hogs within a given period of time. Under the instructions of the court below, the issue on this count was found for the defendant. The second alleged a shipment of a large number of dead hogs from Allen station to St. Louis, and an entire failure of defendant to deliver any portion of them. The third was for a like shipment of 17 dressed hogs, not delivered in good order and within a reasonable time. The fourth and fifth counts simply varied the statement of the same cause of action substantially. The jury, in the verdict, returned a separate finding and assessment of damages under each of the last four counts in the petition. This finding was stated to be what was understood to be their duty under the instructions of the court, and coupled with the further statement that their intention was to assess the whole amount of damages returned, 13,728.78, under the third and fifth counts alone. Plaintiff thereupon elected to take his damages so assessed, and j udgment was entered accordingly. As to the finding of the jury on the third count there is no 'controversy here, and we pass to the consideration of the question as to whether the jury was properly directed as to the liability of the company and the measure of damages in such cases. Plaintiff’s claim for damages on the fifth count was based upon the allegation that on or about the 15th day of December, 1863, in accordance with the rules of the com — 503 — pany, he registered for shipment on said road and at said station 500 fat hogs ; that if all the hogs, then registered at said station, had in good faith been shipped in their proper order, his turn would have been reached by the 25th of said month; that defendant acted with partiality in shipping for other parties hogs offered for shipment after the date at which plaintiff’s hogs were registered, and that from said first mentioned date continuously on until the 17th of January following, his hogs, being at or near said station, were offered for shipment; that at said last named date they were, by direction of the defendant’s agents, driven to another station on the road, and shipped on the 23d of January, 1864; that during this period of time plaintiff expended a large amount of money in feeding and taking care of his hogs, that 120 of them died, and that he sustained heavy damages thereby, as well as in the shrinking in weight of the remainder. These allegations were severally denied, with an averment in the answer that the means of transportation were sufficient to do the amount of business ordinarily required upon the road ; that there was at this period an unusually large quantity of live stock awaiting shipment all along the line of this road, and greatly beyond the capacity of defendant to receive and transport the same as it was offered, and, to add to the embarrassment of the company and in its inability to accommodate the public as speedily as it might otherwise have been done, there was, on,or fibout the 31s.t day of December, an unusual snow storm, which, with the extreme severity of the weather that followed it, greatly obstructed defendant’s road, and for the period of two weeks hindered and delayed the running of trains. Of the series of instructions given at the instance of the plaintiff it will only be necessary to consider the • third, the remainder being treated as substantially correct. An application of the principles enunciated in the preceding part of this opinion will demonstrate the fact at once that the first part of that instruction must be held to be erroneous. The duty of the company to receive the plaintiff’s hogs in — 504 — the order of time in which they were offered for shipment, is to be understood as referring to that station and not to all the stations on the road. As to whether the failure of defendant to receive and ship plaintiff’s hogs- in their proper order and within a reasonable time, was a wilful neglect or refusal to perform its duty, was a question of fact to be considered by the jury, with reference not only to its liability to furnish sufficient means of transportation for this purpose, but also in reference to any other fact that would be sufficient in law to excuse such failure. No argument or citation of authorities is considered necessary to estáblish the fact that the matter set up in answer by way of excuse, and to show that defendant for a portion of the time of which plaintiff complains was prevented from performing its duty, was, properly speaking, the act of God. The snow storm was described by the witnesses to the extent that it hindered and delayed the defendant in the performance if its duty, should have been considered by the jury. The testimony of John Ballentine, who was the brother and agent of the plaintiff, tends to show that the hogs could not have been shipped previous to the storm, and indeed down to the very time at which they were driven away to be shipped elsewhere. After stating that the 500 hogs mentioned were driven to Allen on the 14th of December, he says: “ I understood there were eighty car loads there waiting for transportation when we got there ; I thought we should not get through by spring.” This was in his examination in chief. On cross-examination he said, “ we got to Allen on the 14th of December. Mr. Salisbury had one or two car loads of hogs. 1 dont think our twn would have come before we left in case Salisbury’s hogs had not been taken.” No testimony is preserved in the bill of exceptions that conflicts with these statements. With a showing so favorable to the defendant by the plaintiff’s own testimony down to a period after the occurrence of this storm (which is described by the witnesses on both sides as one of great severity), the court should have told the jury that it was one of the facts in the case to- be consid — 505 — ered by them in determining whether or not the defendant was excused from his liability to receive the hogs within the period of time mentioned in the petition. The only remaining point for consideration is the question of damages. The elementary books as well as the opinions of the courts attempt to lay down a general rule upon this subject, which is substantially, that carriers are responsible for the natural or ordinary and proximate consequences Jof their acts, but not for such as are remote and extraordinary—Sedg. Meas. Dam., 3d ed. 63; 2 Greenl. Ev. § 256; Clark v. Pacific R.R., 39 Mo. 184. The general statement of the rule is easy enough, but the point of difficulty frequently is to ascertain whether a given case is within it or not. Here the act complained of is the failure to receive in its proper order of priority stock offered for shipment. If the bad faith of the defendant is made to appear, he is liable for’whatever damages can be shown to have resulted to the plaintiff as the natural and proximate consequences of its act. The delay occasioned to the plaintiff, and the necessary expenses in feeding and taking care of the hogs, are therefore to be taken in such case as the natural and immediate consequences of the- act. But this cannot be said in reference to the loss occasioned either by the death or shrinkage in weight of the hogs, unless it could be made to appear that these effects were in some manner caused directly by the act of the defendant. The witness, John Ballentine, stated repeatedly in the course of his examination that “the freezing and piling caused the death of the hogs.” His testimony in this respect is corroborated by all the witnesses. But very few of the hogs died previous to the occurrence of the storm, and the loss of the plaintiff in this respect, as well as the large amount of shrinkage in the weight of the hogs taken to. market, was certainly the natural and proximate consequence of the storm, and not the failure of thedefendant. The snow storm being the act of God, could not have been anticipated by the parties, and in no sense could be called a consequence of the defendant’s act. — 506 — It was proper in the instructions to the jury to give some prominence to the fact that after plaintiff’s hogs had been registered for transportation and out of the proper order of time, two car loads of hogs were shipped for Mr. Salisbury. This was an act of favoritism inconsistent with the duty of the defendant to the public, but it really cuts no figure in this case, for the reason that plaintiff showed by his own testimony that his turn would not have been reached before his hogs were driven away from that station, even if these two car loads had not been shipped. No part of the damages sustained by plaintiff could have been attributed, therefore, directly to this wrongful act. The instructions asked by the defendant, and refused by the Court of Common Pleas, and numbered in the bill of exceptions as one, two, and three, ought to have been given. For the giving of an improper instruction at the instance of plaintiff, and the refual of those asked by the defendant, the judgment must be reversed and the cause remanded. Judge Wagner concurs; Judge Holmes, having been of counsel in the court below, did not sit.