McDowell v. Missouri Pacific Railway Co.

Missouri Court of Appeals

McDowell v. Missouri Pacific Railway Co.

152 S.W. 435, 167 Mo. App. 576, 1912 Mo. App. LEXIS 686

CourtMissouri Court of Appeals

DecidedDecember 31, 1912

StatusPublished

Cited by3 cases

This text of 152 S.W. 435 (McDowell v. Missouri Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDowell v. Missouri Pacific Railway Co., 152 S.W. 435, 167 Mo. App. 576, 1912 Mo. App. LEXIS 686 (Mo. Ct. App. 1912).

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Opinion

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.

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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.

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Bluebook (online)

152 S.W. 435, 167 Mo. App. 576, 1912 Mo. App. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdowell-v-missouri-pacific-railway-co-moctapp-1912.

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