169 Mo. App. 168 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in transporting a shipment of goods from Hannibal to Washington, Missouri. On a trial before the court without a jury, plaintiff had judgment, and defendant prosecutes the appeal.
Originally, the Wabash Railroad Company, and the Missouri Pacific Railway Company, which completed the transportation, were made defendants., but the suit was dismissed as to the two latter carriers before the trial was had, and proceeded to judgment against defendant, the initial carrier, alone.
The evidence tends to prove that plaintiff owned a store in Hannibal and, desiring to remove his goods to Washington, Missouri, packed and loaded them in a ear of defendant at Hannibal. After so doing, defendant issued a bill of lading to plaintiff and assumed the obligation of transporting the goods over its own line and delivering to the connecting carrier for Washington. There were, in all, thirty-two boxes of goods. Upon the car reaching its destination at Washington, Missouri, several of the boxes were found to have been broken open and the goods removed therefrom. It is said the total value of the goods lost was. $705'.54. Plaintiff prosecutes the suit for the value of the goods so lost.
The petition, after enumerating the articles of merchandise, avers, “The items of merchandise above mentioned were . . . lost . . . through the negligence, carelessness and neglect of defendants’ agents, servants and employees.” There is no suggestion in the petition that defendant is pursued on its common law liability of an insurer, but a recovery is sought solely on the ground of negligence. There were no instructions given at the trial, and none requested, save one of a peremptory character by defendant, which sought the direction of a verdict for it, and this instruction was refused.
"With the case in this aspect, it devolves, upon plaintiff to show negligence, for he grounds bis cause of action on that score alone in the petition. Under the more recent decisions of our Supreme Court it is said that it must be taken as the established law of this State that, when the cause of action against the carrier stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff to make good the charge laid.. In other words, that the party who founds his cause of action on the negligence of the carrier with respect to the transportation of
There can be no doubt that under our statute plaintiff could enforce liability against the initial carrier for the negligent fault of either of the connecting carriers, the Wabash Railroad Company or the Missouri Pacific Railway Co., as has been frequently determined. [See Blackmer & Post Pipe Co. v. Mobile & O. R. Co., 137 Mo. App. 479, 506, 119 S. W. 13.] It is true, too, that plaintiff may enforce the common law liability of an insurer against the initial carrier alone for his loss, provided the shipment was a through one and the contract of shipment so stipulates, for, in such circumstances, the connecting carriers are regarded as the agents of the initial carrier in consum