57 Mo. App. 471 | Mo. Ct. App. | 1894
— Omitting formal allegations, plaintiff’s petition states: “That defendant kept and maintained at or near its depot, and adjoining its said railroad tracks, at the town of Kenoma, in said county of Barton, stock yards for the purpose of receiving and retaining cattle and other live stock brought to it for transportation at that point. That on the seventh day of March, 1892, the plaintiff, having previously arranged 'with the defendant, as such common carrier for compensation, to receive and transport for him over its said railroad five car loads of live cattle from its said depot at the town of Kenoma to Kansas City, placed in defendant’s said stock yards at said town of Kenoma
The answer was a general denial. There was evidence tending to sustain the allegations of the petition, and the court then, at the instance of plaintiff, gave this instruction: “If you shall believe from the evidence that the cattle in question belonged to plaintiff; that he arranged with defendant to receive and transport them for him; that pursuant to such arrangement, plaintiff took them to defendant’s railroad for shipment; that the stock yards referred to in the testimony were kept and used by the defendant as a place in which to' receive and retain cattle brought to its railroad; that defendant received said cattle into said stock yards preparatory to shipment; that the fences surrounding said yards had been by defendant allowed to become and remain in á weak, rotten and defective condition, so as to be insufficient to retain cattle placed therein; that by reason of such defective condition, plaintiff’s cattle escaped from said yards and ran away, thereby being injured and damaged, then your verdict should be in favor of the plaintiff.”
The instructions given on request of defendant discharged it of liability if the said stock pen was
As will be seen, this is an action for damages accruing to the plaintiff by reason of the failure of the defendant railroad company to keep and maintain a sufficient stock pen at Kenoma, Missouri, wherein plaintiff’s cattle were received and., held preparatory to shipment. The case, in quite every substantial particular is much like Mason v. Railroad, 25 Mo. App. 473, and, as to the rules of law involved, very similar to McCullough v. Railroad, 34 Mo. App. 23. In the former case the cause of the damage was the same as here, a defective fence inclosing a stock pen erected and maintained by the railroad company to hold cattle about to be transported; and, as here, the fence gave way, the cattle escaped and were injured. It was there held that the liability of the company as a common carrier attached at the time the cattle were delivered in the pens — following the rule announced by Mr. Hutchinson in his work on carriers, that “in such cases the deposit is a mere accessory to the carriage, and does not postpone, its liability as a common carrier to the time when they shall be actually put in motion towards their place of destination.”
Hollowing, then, the law as announced in the fore-; going authorities, this defendant was in duty bound to keep the stock yard at Kenoma in a reasonably safe and secure condition for the purposes intended; and if it failed to do so and its patrons, or shippers, were thereby damaged in the manner here alleged, then the defendant must be held responsible. The trial court so instructed the jury, as will be observed by reference to
At the trial plaintiff introduced several witnesses who testified as to the effect that stampeding, overheating, scouring, etc., would produce on fat cattle, such as the plaintiff’s; what would be the change, if any, as to their general appearance and market value; whether there would be more than ordinary shrinkage or loss of weight, etc. To this evidence defendant’s counsel objected, and now calls attention thereto in his brief. "We regard these objections entirely without merit. The witnesses were experienced farmers, cattle dealers, feeders or traders, and it would seem proper to admit such testimony as tending to advise the-jury in matters with which men of other callings are not supposed to be so well acquainted.
Defendant’s counsel further contends that the trial court erred in excluding the bill of lading which was given to plaintiff at Kenoma, but subsequent to the time when the cattle escaped from the pen and were injured. The evident purpose of introducing the bill of lading was that the defendant might escape liability under the eleventh clause thereof, which provided: “In consideration of the rates herein named and the aforesaid covenants, the shipper hereby releases and does waive and bar any and all causes of action for damages that have accrued to him by any written or verbal contract prior to the execution hereof.” The court’s ruling was unquestionably correct. The answer was a general denial and under it the defendant could not be allowed to make a defense of confession and avoidance. If the defendant desired to prove that, by a subsequent arrangement, the plaintiff had waived his rights under the prior verbal agreement for carriage, or that there had been accord and satisfaction, such defense should have been pleaded.
There was no such surprise as to the testimony of this witness as would warrant the court in granting a new trial. In the first place it requires considerable “stretch of the imagination” to detect any substantial discrepancy between the contents of the written statement of Schreiner and his testimony given at the trial; and again the defendant can not be surprised that the plaintiff introduces evidence in support of his case as
In short, we conclude that the matters testified to by the witnesses make a case for plaintiff; the issues' were fairly tried and submitted on correct declarations of law; and no substantial error being found in the record, the judgment will be affirmed.