143 Mo. App. 42 | Mo. Ct. App. | 1909
(after stating the facts). — The instructions requested show both parties tried the case on the theory that plaintiff was counting on the negligent delay of defendant in carrying the fish, whereby they were damaged, and not on any common law liability for delivering the fish in a 'damaged condition. [Hurst v. Railroad, 117 Mo. App. 35, 37.] The causes was submitted on the theory that there must have been careless and unreasonable delay in the transportation of the goods from Liverpool to East St. Louis to lay defendant liable, and damages could not be recovered for losses due to delay or other injurious incidents of the voyage across the Atlantic, caused by contrary winds, heavy seas, or the perils of navigation generally, for which defendant was not to blame. Hence we shall not consider the appeal with reference to a possible common law liability of defendant. It had issued in Liverpool a through bill of lading by which it agreed to transport the fish from that port to East St. Louis, agreeing to carry first to Boston by the ship Sagamore* and from there to East St. Louis by rail. Defendant, therefore, became a common carrier for the entire route and was liable for the negligence of any carrier which transported the property under an arrangement with it. [McCann v. Eddy, 133 Mo. 59.]
One point of controversy is over the court’s action in striking out the special defense based on the trustee
Complaint is made because the ■ court refused to charge that before plaintiff could recover it must prove by a preponderance or greater weight of the evidence, any damage done to the goods by leakage was directly caused by some act of negligence on the part of defendant, its agents or servants. But the requested instruction said plaintiff admitted the damage to the mackerel was caused by leakage, and there was no such admission
For plaintiff the court instructed the jury that if the mackerel were shipped in apparently good order and condition and properly packed, and when delivered to plaintiff by defendant some of the. casks Avere broken open and the brine had escaped, and the mackerel become deteriorated, then the law presumed the negligence of defendant. caused said condition, and this presumption would obtain until defendant showed by the greater Aveight of evidence that its negligence did not bring about the condition, and unless defendant had prOA'ed to the satisfaction of the jury by the greater weight of evidence the condition of the mackerel was not produced by defendant’s negligence, and the jury should find the mackerel were not transported and delivered in the usual time, the verdict must be for plaintiff. Plaintiff counted in its petition on negligent delay of defendant in transporting the fish, and it will be perceived the instruction just epitomized told the jury the law presumed negligence if the mackerel were delivered to defendant in good condition and delivered by defendant to plaintiff in a deteriorated condition. This is not the law. It Avas incumbent on plaintiff to establish its charges of negligence and consequent damage to the mackerel. In support of the. instruction we are cited by plaintiff’s counsel to Kirby v. Express Co., 2 Mo. App. 369. That decision does support it, but it was rendered on the authority of Levering v. Union, etc., Co., 42 Mo. 88, and Ketchum v. Express Co., 52 Mo. 391, and those decisions were expressly overruled
The judgment is reversed and the cause remanded.