118 Mo. App. 618 | Mo. Ct. App. | 1906
Action against a common carrier to recover damages resulting from negligent delay in the transportation of live- stock to market.
The petition is in two counts. In the first, it is alleged that on April 7, 1904, at 7 o’clock p. m., plaintiff delivered to defendant at Keytesville for shipment to the National Stock Yards at East St. Louis, Illinois, sixty-two head of cattle and ninety-two head of hogs, the property of plaintiff, that the stock was loaded in cars and ready to go forward at the hour mentioned and defendant accepted the shipment and agreed for hire to carry the stock to its destination within a reasonable time; that eleven hours was a reasonable time, but defendant carelessly and negligently delayed the stock in transportation and consumed nineteen and one-half hours from the beginning to the end thereof; that, had due care been
In the second count, plaintiff seeks to recover damages that follow'ed a like delay in the shipment of two hundred and thirty-four head of hogs, which defendant-received at Keytesville on May 31, 1904, at 7 o’clock p. m. for delivery at the National Stock Yards in East St. Louis. The amount of the damage claimed in this count is $97.16.
In the answer, defendant averred that the two shipments were made under the provisions of five written contracts. In the first, the hogs were shipped under a contract signed by plaintiff, twenty-two head of the cattle were forwarded under a contract also signed by plaintiff and the remainder of the cattle under a contract signed by Alex. Guthridge as shipper. In the second shipment, one hundred, seventeen head of the hogs were shipped under a contract signed- by plaintiff and the remaining one hundred, seventeen head under one signed by Steve Bushnell, plaintiff’s father. These five instruments are identical in form and contain a number of limitations upon defendant’s common law liability, all of which are based upon the recited consideration of a reduced rate. Several of them are employed in the answer to support defenses interposed and such will receive consideration in the ensuing discussion. Defendant pleaded and offered proof tending to show compliance with the regulations of the Interstate Commerce Law. Plaintiff made no effort to show that the rates fixed in the contracts were not in fact reduced
Plaintiff’s reply was a general denial. At the close of the evidence, defendant requested an instruction in the nature of a demurrer to the evidence, which was refused, the issues were submitted to the jury and a single verdict was returned on both counts in the sum of $228.88. Judgment was entered on this verdict and defendant appealed.
Defendant argues, that,, as the judgment is indivisible and includes damages sustained under each of five separate shipments, it cannot stand because two of the shipments were made in the names of persons other than plaintiff, that, with respect to the stock forwarded under the G-uthridge and Steve Bushnell contracts, defendant sustained no contractual relation to plaintiff, did not know that plaintiff claimed to be the owner of that property, and, as no assignments of these contracts or of thé causes of action arising under them were made to plaintiff, he cannot recover either in virtue of his actual ownership of the property or as trustee of an express trust. It is not shown that defendant knew that plaintiff was in fact the owner of the stock shipped in the names of these other persons, but the fact of his ownership at the time of shipment is established by uncontradicted evidence and in the circumstances disclosed entitles him to prosecute the action in his own name without an assignment of the contracts or causes of action dependent upon them. Section 540, Revised Statutes 1899, requires that “every action shall be prosecuted in the name of the real party in interest.” Plaintiff alone sustained any damages in consequence of defendant’s breach of contract. The nominal shippers had neither title to, nor interest in, the property. The contracts must be held to have been made for the sole benefit
The eastern terminus of defendant’s line is at Luther on the west side of the Mississippi river. The stock yards are across the river some eight or ten miles distant, and stock for that place is delivered by defendant to a connecting carrier at Luther. The contracts, in effect, provide that in consideration of the reduced rate the liability of defendant does not include responsibility for the acts of its connecting carrier. It is claimed the evidence shows that while delays occurred in both cases on the line of defendant, the shipments reached Luther and were delivered to the connecting carrier in time for the stock to have been delivered by the latter carrier at the stock yards for the best of the markets to which the respective shipments were madé. In other words, that the negligent delays that produced the injuries resulted from the acts of the connecting carrier. Defendant says that the contracts exempt it from liability for the consequences of such acts.
■ The contracts do not state the destination of the shipments, but each begins with an offer made by the shipper, of which the following is a copy: “To the Wabash Railroad Company: The undersigned offers for shipment over your railroad and connecting lines
The contracts in terms restricted defendant’s liability to that resulting from negligence and it is argued that plaintiff has failed to introduce any evidence tending to show that the delays were caused by any act of negligence either of defendant or its connecting carrier. Plaintiff, who accompanied both shipments, testified that the first one left Keytesville at 7 o’clock p. m. and good time was made in the run to Moberly — “We got to Moberly about 10:30 and left about 1:30, about three hours Avaiting for 96 to come. This train is made up at Moberly of two trains, one from the west and one from the north, and they told me they Avere Avaiting for 96, that Avas the reason of the delay. We got out of Moberly at 1:30; they Avere stopping all along the road. I don’t know what the delays Avere. They stopped at St. Charles and put in a new boxing there in one of the cars.” The train reached Luther at about 7:30 o’clock in the morning and soon thereafter the cars containing plaintiff’s stock were delivered to the connecting carrier. They were not delivered at the stock yards, less than ten miles away, until 3 o’clock in the afternoon. Plaintiff left the train at Luther and does not know the cause of the final delay.
Defendant’s witnesses admit that the train was two hours late in leaving Moberly caused by Avaiting for the train from the north which was known to be two hours late. The conductor in charge of the train from Moberly
Conceding that defendant as a common carrier had the right to contract with plaintiff (upon a sufficient consideration) against liability on account of delays in the transportation of plaintiff’s property, such provision will be enforced only to the extent of relieving defendant from liability for delays that were not caused by its own negligence. Defendant’s duty as a carrier, which it could not cast off by contract, required it to use reasonable care and diligence in the performance of the transportation. But with the contracts containing the provision under consideration in evidence, the burden devolved upon plaintiff to show that the unusual and
While it may be granted that evidence of mere delay standing alone is not sufficient to support a reasonable inference of negligence, which is a positive wrong and always must be proven affirmatively, yet from the very nature of the relation of carrier and shipper circumstances that even slightly tend to show a negligent origin of the unusual delay will support an inference of negligence. “It is enough for plaintiff to disclose circumstances sufficient to raise a fair inference of negligence” and “especially is this so where the means of showing how the delay occurred is with the defendant and not the plaintiff.” [Anderson v. Railroad, 93 Mo. App. 677; Witting v. Railroad, 101 Mo. 631; Otis Co. v. Railroad, 112 Mo. 622; Sloop v. Railroad, 93 Mo. App. 605; Botts v. Railroad, 106 Mo. App. 397; Fulbright v. Railroad, 118 Mo. App. 486; Ficklin v. Railroad, — Mo. App. — .] Thus, in the Anderson case in addition to unusual delays it was shown “that other trains going towards Chicago passed them while thus delayed:” and in the Fulbright case, supra, the delay was caused by the carrier holding the train carrying the plaintiff’s stock at an intermediate station awaiting the arrival of a connecting train that was late. In both of these cases, we held the circumstances raised an inference of negligence sufficient to take the issue to the jury. In the present case, we have such circumstances together with others equally suggestive of negligence and we think they suffice to present an issue of fact. The principles followed in what has been said, when applied to the facts of the second shipment, necessitate a like conclusion. A recitation of those facts and the application of the rules announced to them would be in essential particulars repetitive and for that reason will not be made.
The tenth clause of the contracts contains the agree
Five months after the second claim was presented, defendant wrote plaintiff’s agents: “On June 10, 1904, you presented our company with a claim for $97.16, account J. B. Bushnell, Keytesville, Mo. After thoroughly investigating the merits of the claim, our Mr. M. L. Becker begs to decline, as there is no liability with this company. I will thank you, therefore, to withdraw.”
Other points made by defendant have been considered and found to be without sufficient merit to call for special mention. The case was fairly tried and the judgment is. affirmed.