126 Mo. App. 244 | Mo. Ct. App. | 1907
The plaintiff, a dealer, was the owner and consignee of five cars of scrap iron, shipped to him from some point in Texas over the defendant, M. K. & T. road. The original contract under which the various cars were shipped, it is said, denominated the point of destination to be the city of St. Louis. No particular point in the city was mentioned. Two of these cars arrived at defendant’s terminals in north St. Louis on September third, one on September twenty-second, and two on October seventh. The defendant promptly notified plaintiff of the arrival of each car. Upon the arrival of the first three cars, pursuant to the usual custom, defendant placed them upon its “hold” track and while so upon the hold track after their arrival, and prior to the arrival of the last two cars, plaintiff called upon defendant’s agent and paid the freight on all five of the cars, giving written directions or “reconsignment orders” to defendant’s agent to deliver the five cars at his place of business, a private switch at Twenty; Third and Gratiot streets, which orders defendant accepted and agreed to deliver or cause to be delivered the five cars as directed. At the time of paying the freight and giving such reconsignment orders, plaintiff paid to the defendant an additional charge of $2.00 for each of the three cars then standing on its hold track to compensate it for service in transporting or causing to be transported the three cars mentioned from its hold track to plaintiff’s switch at Twenty-Third and Gratiot streets. The charge is denominated in the evidence by the plaintiff and the defendant’s agent, a “reconsignment charge.” No additional compensation or reconsignment charge was paid by plaintiff on account of the two cars which had not yet arrived for the reason, as given by both plaintiff and defendant, no such charge is made by the railroad companies when they receive
The defendant introduced evidence tending to show that on account of the congestion of business on the Missouri Pacific tracks, resulting, probably remotely, from the Mississippi river overflow in June of that year, that road had' declared several embargoes against the reception of dead freight, such as plaintiff’s iron, from other lines in the city. A portion of this time, however, it had an open order to receive ten cars per day from the defendant. It was shown that defendant made an attempt to deliver one of plaintiff’s cars to it in due time and this was rejected, whereupon no further attempt was made in that behalf for some time, until the embargo was removed.
The facts above stated are practically conceded. The real controversy between the parties pertains rather to the conclusion of law on the facts than with reference to the facts themselves. It is insisted upon the part of the plaintiff that defendant is liable to him as a common carrier for the breach of its positive duty as an insurer to deliver the iron within a reasonable time, while on the other hand, it is insisted by the defendant that its duty as a common carrier had ceased and that it was only responsible as a forwarder for the exercise of ordi
The court adopted the defendant’s theory of the case and charged the jury in substance that defendant was acting only as a forwarder after the several cars reached defendant’s terminals in St. Louis and was not liable in this action if it exercised ordinary diligence to deliver to its connecting carriers and the delay was occasioned by reason of such connecting carrier’s refusal to receive them. The jury found the issues for the defendant under these instructions and plaintiff appeals. A majority of the members, of this court are of the opinion the learned trial judge erred in the conclusion that defendant was a forwarder and responsible as such for the exercise of ordinary care only in attempting to deliver to its connecting carriers. Now, it will be necessary to examine the case with reference, first, to the three cars which had arrived and were standing on the hold track at the time of reconsignment, and second, with respect to the two cars then en route. It is true defendant was not required under the original contract of shipment, to convey them beyond its own lines to his private switch, and its full obligation in that behalf was no doubt discharged in view of the established custom shown in the evidence with respect to shipments of scrap-iron in carload lots, by placing the cars in the care of its servants in a reasonably safe place on the usual or convenient side track for unloading and notifying the plaintiff of their arrival. Upon so doing, defendant’s relation to those cars as common carrier ceased and that of warehouseman began. [Hutchinson on Carriers (3 Ed.), secs. 711-710; Pindell v. Railway, 34 Mo. App. 675; s. c., 41 Mo. App. 84; Klass Com. Co. v. R. R. Co., 80 Mo. App. 164; Russell Grain Co. v. Wa
There being no controversy in the case with respect to any question of fact and the amount of plaintiff’s loss resulting from defendant’s default, being admitted, the judgment will be reversed and the cause remanded with directions to the trial court to enter judgment for the plaintiff in the sum of $319.35, with interest at the rate of six per cent per annum from the date of judgment in the court below. It is so ordered.