81 Mo. App. 109 | Mo. Ct. App. | 1899
Defendant has appealed from a judgment of $452 which plaintiff recovered against it for damages done to a carload of horses shipped over said Wabash road in April, 1897, and which were consigned from Kansas City to Indianapolis, there to be sold on the market. Defendant, however, by the contract of shipment, undertook only to carry the-horses to St. Louis whence they were to be forwarded by another line to Indianapolis.
The evidence shows that the horses were loaded at the-Kansas City stock yards late in the afternoon of April 20 and arrived at the yards at St. Louis the following morning. According to the undisputed evidence the horses were in good condition when they left Kansas City; but, according to plaintiff’s evidence, when they were unloaded at St. Louis the next-.
If then plaintiff’s horses were injured in the transportation from Kansas City to St. Louis by reason of their own vices or vitality and not_through the negligent operation of the car or train wherein they were hauled, then defendant can not be held responsible. But if on the other hand the injuries were not self-inflicted by the animals, did not come from the exercise of their own vices, but resulted from the careless or unskillful handling of the car or train, then the defendant should answer for the damages. Defendant’s counsel contends that plaintiff failed to introduce proof of this last hypothesis. It is insisted that evidence showing merely that the horses were loaded at Kansas City in good order and perfect physical condition, and that on arrival at St. Louis they were found to be in a bad, crippled condition, was not sufficient to warrant a submission of the case to the jury.
This contention is based on the generally correct proposition, that “where the injury is one to dead freight, the mere proof of receipt in good condition and delivery in a damaged condition fixes prima facie the carrier’s liability; but where it is live freight the shipper must in the first instance go further, and must show an injury by human agency, causing, or concurring to cause, the loss or damage complained of.” Judge Rombauer in Hance v. Express Co., 48 Mo. App. 179. But the same learned judge proceeds to state, that “it does not follow that such injury must be shown by direct evidence to have resulted from the carrier’s negligence before the carrier is called upon to show due diligence. The case stands like any other case of exception, and proof of negligence may be made by circumstances. In case of breakage, where that forms an exception, goods may be broken to such an extent, while in transit, as to make their appearance at the terminus of the transit evidence tending to prove the carrier’s negligence. Witting v. Railroad, 101 Mo. 631.”
The case was in all respects fairly tried, was submitted to the jury on abundant evidence and proper instructions, and the judgment must be affirmed.