33 Mo. App. 269 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This is an action against the defendant as a common carrier for failure to deliver all the goods of the consignor entrusted to its charge. The petition alleges the incorporation of the defendant, and that on the fourteenth of May, 1887, plaintiff delivered to the defendant, near the mouth of the Big Muddy river, fór transportation to St. Louis, forty-seven hundred railroad cross-ties, agreeing to pay defendant for their transportation and delivery at the. rate of ten cents per tie, and received defendant’s bill of lading therefor; that the defendant failfed to deliver fourteen hundred of the ties of the value of forty-eight cents each, and concludes with a prayer for judgment for six hundred and seventy-two dollars against the defendant company and defendant Martin Michael.
The answer of the company was, first, a general denial of all allegations not afterwards admitted, and further answers in substance, that it owned the seaworthy steamer “Mary M. Michael,” and seaworthy barge “Freihaut” and contracted in writing with plaintiff to carry on said barge forty-seven hundred ties from Big Muddy river, Illinois, to St. Louis, Mo., “the unavoidable dangers of navigation, fire, explosion and collision excepted; ” that the steamer and barge started up the river on May 14,1887, fully manned, equipped and provided for the voyage ; that on May 16, 1887, about one o’clock a. m., while the steamer was on said voyage and in the channel of the river at a point
For a first counter-claim defendant alleges the same facts as to the contract and accident, and alleges that when the ties were floated off the barge at the time it sunk it became necessary for defendant, acting for the best interest of plaintiff, with whom it could not communicate, to employ men to catch and restore 3,437 of said ties at a cost of two cents each, and it paid said men therefor $68.74. It also was compelled to hire the barge “ Pike” and pay it ten dollars per day for six days’ use in loading and carrying said ties to St. Louis ; that defendant’s steamer was necessarily engaged three days in said service at a cost to defendant of two hundred and twenty-five dollars, in all amounting to $353.74, necessarily expended by defendant in recovering the lost ties, for which it prayed judgment.
For a second counter-claim it said that, in June, 1887, at rates set forth in account “B” at plaintiff’s instance and request, it carried certai n ties from Neeley’s landing to St. Louis at price of ten cents per tie, and paid certain charges and towed certain barges for plaintiff, and that there is due therefor ninety-five dollars for which it prayed judgment.
The answer admitted the loss of the ties, and setting up the sole defense that the snag was an unavoidable danger of navigation, narrows the issue down as to whether defendant, or its agents or officers were guilty of negligence or want of reasonable care, forethought, skill or prudence in avoiding the snag.
The testimony in chief tended to show the delivery of the ties to the defendant, the contract price agreed upon for their transportation, the bill of lading, the failure of the company to deliver all the ties at the place of destination, and their market value, demand for payment and the failure of the company to make good the loss. There was also some evidence to the effect that the president of the company blamed the pilot in charge of the boat for the disaster. There was some correspondence between the parties, but as it is hot material to the disposition of the case, we will not further notice it.
At the conclusion of the evidence in chief, the court gave an instruction that no recovery could be had against Martin Michael, but refused an instruction to that effect concerning the defendant company ; of this ruling the defendant complains.
The testimony of the defendant was made up of many witnesses, and as their testimony is important we give the same almost in full. The first witness was John W. Little, the pilot in charge of the boat at the time of the accident. He had been a pilot and captain for forty years; was in charge of the boat when the accident occurred; boat and barge were both in good condition for the voyage ; was at the wheel when the accident occurred ; happened near Illinois shore while making crossing at Lilly’s Landing; first he knew of danger was when lookout hallooed that there was a “break ahead”; immediately stopped boat and commenced backing; break is a roughness in the water
Several days after the accident he was paid off by Michael and the latter used hard words to him and said it was bad work; that he ought not to pay but would do so. Did not see snag on down trip; young Michael was captain of the boat; there was some doubt of ¿their passage and we worked slow; had been in doubt long time but never could tell where or when it was going to be ; channel was about one hundred and twenty yards wide; snag was to left of boat; we tried to get' divers; some ties slipped off when the barge struck; we.left barge when we came to St. Louis right abreast of where she
John Kock: Laborer on river ; was on the barge Freihaut, heard deck-hand on forward part of barge singing out “mark twain” and “break ahead”; the cries were about the same time ; I hallooed, stop her ; barge then struck ; she struck right after the lookout hallooed; snag struck bow of barge; she sunk in a minute or two ; some ties, don’t know — many—floated off; could not count the ties that were lost; saved all we could ; put a boom around the barge ; put planks down, and put ties on top of them to bear them down and keep the ties from floating off ; had passed over that place often before, but never saw the snag.
JohnLare: River-man, was on the “Freihaut” when she sunk; heard deck-hand sing out “mark twain”, and then at once “ break ahead”, and in about a minute the barge sunk ; don’t know if boat stopped ; was trying to get off barge ; could not see the snag; don’t know if ties fell off ; did not have time to look ; just had time to get off the barge ; might have passed snags and not seen them; was in the shanty on the “ Freihaut” when I heard the lookout shout; I got out and onto the boat; I knew the man was in front on the barge, because I heard him; ties were five feet above deck.
John E. Leubben: Pilot on “Dolphin;” owned by Dolphin Transportation Company ; Little is a good pilot; works with witness on the Dolphin; knew the “Freihaut;” knew Kennett’s crossing; passed down few days before accident; did not see that snag at that time, it was not visible ; sunken snags are among the dangers of navigation ; it often happens that a vessel strikes a snag; would not say a pilot was negligent because he struck an unseen snag coming up river in middle of night.
Captain Michael: President of company; there were twelve men in the Michael crew ; knew the pilot Little forty years ; never heard of him in an accident; was not on the steamer at time of accident; the market value of ties in St. Louis at time these were to have been delivered here was forty to forty-five cents; when heard of accident, looked for a barge ; Costigan (plaintiff) did not live here ; had difficulty in communicating with him; I could not reach or write to him without delay ; paid ten dollars a day for use of barge “Pike;” used her six days from time I got her until ties were unloaded here by consignee; the ties were boomed as well as could be ; some may have slipped away ; employed twenty or twenty-two men to go down and get the ties; they were
John M. Little recalled: His license had never been revoked; had been suspended once for ninety days. Was not under influence of liquor when accident 'happened.
Peter Michael: Licensed captain and pilot, running for eight years between St. Louis and Cairo on the Mary Michael; was familiar with river; captain of Michael at time of accident; had two barges in tow, one of piles and one of ties, one barge on each side of boat and extended about two-thirds of their length ahead ; they were about one hundred and fifty feet long; the Michael was about
The following witnesses testified in rebuttal:
W. B. Chapman : River pilot for twenty-five years; knew there was a snag in crossing at Kennet Castle in spring of 1887 ; it had been there several months before accident; was a medium size snag — a tree — pointing down stream; river was eight to ten feet deep at that point; channel was seventy-five to one hundred yards wide; ran large steamer over crossing without accident; there was room for Michael and tow to go through without striking ; I noticed snag on down trip ; it had been ridden over by a down boat; I noticed it up again after the accident; snag was known to river-men before accident; Little was on river before witness. Knew Little twenty years; Little was known among river-men for that length of time as a competent, careful and reliable pilot; had been running all spring of 1887; about May 9,1887, witness had passed the place on down trip ; snag was not visible so far as we could then see there; was no snag in river at that time and place ; on the seventeenth we came up ; barge was lying below snag straight with the current; saw ties on her ; did not notice men; had noticed floating ties about fifteen miles below; snag was then sticking out of water ; witness’ impression was the barge had forced it from beneath surface of water until it projected eighteen inches above; snag was on the Missouri side of channel; water on both sides; we ran above the snag ; there was ten feet of water where snag was; water was less toward Missouri side, and it was same on other side of channel toward Illinois shore ; the best water in channel was between Illinois side just beyond the snag toward Missouri side ; channel quartered across river coming up from Illinois to Missouri side, and going from Missouri to Illinois side ; best water was between Illinois side and across beyond snag;
Joseph Dryden : Pilot for sixteen years between St. Louis and Cairo ; saw barge above Perry’s tow-head on middle bar in spring of 1887 ;.had talk with Capt. Michael about the accident; don’t remember date ; witness Michael and Costigan were present; Capt. Michael said, “if I had been on boat,” or something of that kind, “ the accident would not have occurred ; ” didn’t hear him say anything about Little ; that if he had not been there it would not have happened; told Capt. Michael he had seen fifty or sixty ties about Ste. Genevieve Bend; he and Costigan were talking of going after the ties ; there is a snag in that crossing; it has been there all through the season ; don’t know when he first noticed it; judges it was there before, accident five or six weeks'; stuck up above water eighteen inches — a large snag ; it was anchored in twelve feet of water; boat could run over it going down river ; I think it was run over ; it had that appearance the trip before ; witness always ran close to the snag ; in going down the trip before the accident witness could not see it, only track of it; coming up saw it; occurred to witness that the barge
The defendant asked the court to give the following instructions, which were refused in the form tendered, but were mostly given in a modified form, afterwards by the court :
“1. The court declares the law to be that, under the pleadings and all the evidence in the case, the plaintiff is not entitled to recover.
‘ ‘ 2. The court declares the law to be that, under the pleadings and evidence, there must be a judgment in favor of defendant, the Michael Transportation. Company, upon the first counter-claim in an amount not exceeding the amount claimed in the petition, with interest thereon from judicial demand, amounting in all to the sum of f>-.
“3. The court declares the law to be that a snag sunken in the channel of the river is a danger to navigation.
“ 4. The court declares the law to be that, under all the evidence and pleading in this case, thé sinking of the barge Freihaut, and the loss of plaintiff ’ s ties as a result thereof, was not due to any want of reasonable skill and attention on the part of defendant’s, servants having charge of said barge and ties.
“5. If it appears from the evidence that any of the ties mentioned in the petition were lost by reason of the sinking of the barge upon which they were laden,*283 by coming into contact with a snag in the river, and it also appears that said snag was sunk under the water and was not visible, and was in the channel of the river for boats and tows ascending the river, and that only a few days before the pilot of defendant’s vessel on his way down looked for said snag and could not find it, and that in coming up the ri ver a few days thereafter, on the trip when said barge was sunk, lie ran defendant’s vessel and her tow slowly and cautiously over said river, and had men to sound the depth of the water stationed on the head of the barge in advance of the head of the steamer as a lookout, and that said man was performing such duty and notified the pilot of a break ahead, and that said boat was stopped and backed, but was so close upon said break of said snag as to render it impossible to avoid striking it, then the court declares the law that defendant is not liable for the loss of any of said ties lost by reason of this accident to said barge.”
Plaintiff’s instructions, given as modified by the court, are as follows :
“1. The court declares the law to be that, if the defendant Michael Transportation Company did not deliver to plaintiff or his agents at St. Louis all of the railroad ties placed in its charge or custody to be transported by it from the mouth of the Big Muddy to the city of St. Louis, and that the failure to deliver all of said railroad ties was caused by the want of ordinary or reasonable care, skill and attention on the part of defendant or its agents, especially intrusted with the control and management of said property during its transit on the Mississippi river from its starting point to its final destination, taking into consideration the character of the goods, the time and character of the night, and the anticipation of all dangers of navigation on said river that should reasonably have beeen anticipated, including a possibility of running into a snag, either hidden or in sight, and known of by defendant, its officers or agents, then the plaintiff is entitled to a judgment.
*284 “ 2. The court declares the law to be, that defendant is a carrier of plaintiff’s goods for hire, and that in the care and custody of said goods it is bound to use all reasonable care, skill and attention and diligence to conduct it safely to its destination; that it was the duty of said defendant carrier to place said goods in charge of competent and careful agents or employes ; and if the jury find from the evidence that the agents and employes so placed in charge neglected and failed to exercise all ordinary care, prudence and watchfulness, so as to avoid, if possible, all the dangers of navigation on said river, and that said accident and loss to plaintiff was occasioned by the failure on part of defendant’s agents or employes to perform their said duties, then the plaintiff is entitled to a verdict.
“3. The court declares the law to be that if it render a judgment in plaintiff’s favor, it should render a judgment for the amount it shall find from the evidence that he has been damaged by defendant’s failure to deliver said ties; and in making up said amount it should take into consideration the number of ties that defendant failed to deliver to plaintiff, his agents or purchasers at St. Louis, at their market value in St. Louis, at the time when they should have been delivered, less the amount of ten cents per tie (freightage on each one not delivered), to which court may add six per cent, interest from date of commencement of action.”
The court then modified defendant’s instructions numbered three and five and gave them as follows :
“3. The court declares the law to be that a snag, sunken in the channel of the river is a danger of navigation, if its existence or position is not well known to people whose business it is to navigate said river or carry on a transportation business thereon.
“5. If it appears from the evidence that any of the ties mentioned in the petition were lost by reason of*285 the sinking of the barge upon which they were laden by coming in contact with a snag in the river; and if it also appears that said snag was sunk under the water and was not visible, and was in the channel of the river for boats and tows ascending the river, and that only a few days before the pilot of defendant’s vessel on his way down looked for said snag and could not find it, and that in coming up the river a few days thereafter, on the trip when said barge was sunk, he ran defendant’s vessel and her tow slowly and cautiously over said river, and had men to sound the depth of the water stationed on the head of the barge in advance of the head of the steamer as a lookout, and that said man was performing such duty and notified the pilot of a break ahead, and that said boat was immediately stopped and backed, but was so close upon said break of said snag as to render it impossible to avoid striking it, then the court declares the law to be that defendant is not liable for the loss of any of said ties lost by reason of this accident to said barge, unless the court believes that said pilot and other officers of said boat had known for a long time that said snag was in said river at the place where said barge struck it, .and had had no knowledge or assurance previous to said barge striking said snag that said snag had been removed or that it was no longer in the river at that point.”
The court gave the following instructions asked by defendant:
“4. And the court further declares the law to be that, if it appears from the evidence that the ties mentioned in the petition, or any part t hereof, were lost by reason of the barge Freihaut having come into collision with a sunken snag in the channel of the river, while prosecuting her voyage to St. Louis from the point of shipment, then under the terms of the bill of lading mentioned in the petition, the ties, or such portion of them as were thus lost, were lost by reason of a danger of*286 ■navigation, and unless it appears from the evidence that the snagging of said barge might have been avoided by the exercise of reasonable skill, care and attention on the part of defendant, the Michael Transportation Company, or its servants, then the defendant is not liable for such ties so lost.
“5. The court declares the law to be that, if it appears from the evidence that the ties, or any- part of them, were lost by reason of the barge upon which they were laden being sunk by coming in contact with a snag sunken under the water in the channel of the river while said barge was in the prosecution of her voyage to St/ Louis, that then the-burden of proof rests upon plaintiff to show clearly that defendant or its servants were guilty of negligence, and that the loss of said ties was due to a failure on the part of defendant to exercise reasonable skill and care in avoiding the injury to the barge; and unless the evidence shows such want of skill and care the defendant, under the terms of its bill of lading, is not liable for such ties as may appear from the evidence to have been lost.
“ 6. If it appears from the evidence that the barge upon which plaintiff’s ties mentioned in the petition were being carried by defendant was sunk in the Mississippi river, while on the voyage from the place of shipment to the place of destination, by a sunken snag in the channel of the river, and that the striking of said snag by said barge could not have been avoided by the exercise of reasonable skill and attention on the part of defendant’s servants employed in their conveyance, and that by reason of said accident to said barge the defendant could not proceed with said ties on the voyage, and that said barge could not have been raised, and that defendant had no means of communicating with plaintiff without risking the loss, of said ties on said barge, then it was the duty of defendant to procure another vessel upon which to load them and carry them to their*287 destination, and defendant is entitled to charge the additional expense of the hire of said new vessel or barge, and of saving said ties, to the plaintiff; and if it appears from the evidence that such expenses were so incurred for such purpose, and that they were reasonable and necessary to the preservation and carriage of said ties, then, under the law, there must be a judgment for defendant upon its first counter-claim, in such sum not exceeding the sum claimed in said counter-claim as under the evidence is shown to' have been so reasonably and necessarily expended in saving and forwarding said ties to their destination.”
The errors complained of are (1) as to the admission and rejection of testimony ; (2) the giving and refusing of instructions ; and ( 3) the judgment is without evidence to support it.
The latter proposition is relied upon chiefly, both in the argument before us and in the brief filed by the defendants. They insist that the judgment is not only against the evidence, but is without any evidence to support it. -
This being the main question, we will leave the regular order of errors assigned and dispose of it first.
I. This court has uniformly held that a judgment will not be reversed because a verdict is against the weight of evidence. Nor will we examine a record to determine where the weight of evidence lies, the rule being that where there is substantial evidence in the record to support the finding, the judgment will be affirmed; but we have never held that a judgment will be affirmed where there is no evidence to support it. A careful examination of this record is necessary to the proper determination of this question. We have, therefore, looked into this matter with much patience and care, scrutinizing all of the testimony, and while the same is not as positive, pointed and clear as we would like to see, yet we are not prepared to hold that there
The only inference to be drawn from the testimony of Capt. Michael, president and chief stockholder of the defendant,; is, that the accident was attributable to the negligence and carelessness of the pilot in charge of the boat.
The captain in charge of the boat and the person who signed the bill of lading shows absolute previous knowledge of the snag, and yet, when the accident occurred, he was in bed. He was informed of the dangerous character of the river at this point, and such knowledge should have led him to be on guard, with more than ordinary care, until the danger point had been passed. His failure in this respect, while not conclusive by any means, yet, when taken in connection with the other testimony, justified the trial court in finding for the plaintiff on the question of negligence. We will not interfere on this ground with the finding of the trial court.
II. It is urged that the judgment of the trial court is contrary to the instructions given by it, and not warranted by the evidence; and further, that the instructions are inconsistent and contradictory. It is very well
On the contrary, taken as a whole, the instructions seem to be entirely fair and consistent with the facts in evidence. They appear to have been drawn under the decision of the supreme court in the case of Hill v. Sturgeon, 28 Mo. 323, where it is said: “A common carrier is an insurer of goods entrusted to him for transportation ; if loss or damage occur, he is liable unless he shows affirmatively that it happened by reason of some cause or accident for which the law excuses him. The onus being upon the carrier, he will not be discharged from liability by showing that the navigation was difficult or dangerous, or that he employed skilful or competent persons to control or manage the boat; he must show that the loss occurred in a manner and for a cause that will acquit him.”
“The words ‘dangers of the river’ or ‘unavoidable dangers of navigation’ in a bill of lading mean only the natural accidents incident to river navigation and do not embrace such as may be avoided by the exercise of skill, judgment and foresight demanded of the carrier.” Ib.
“ If, at the time of a disaster and consequent damage or loss of goods in charge of a carrier, he is guilty of some delinquency, as by having an incompetent pilot in charge of the boat, if such delinquency might have contributed to the disaster, or might have had an agency in producing it, he will be liable ; he may, however, show by way of defense that the disaster must have occurred, although the delinquency had never existed.” Collier v. Valentine, 11 Mo. 309. These instructions
“ Valuable property is committed (says a learned judge) to the diligence and skill of the owners and officers of steamboats and other vessels, and as the public have no means of knowing whether the boat is safe or whether the officers are competent for their places, their only security is in the vigor of the law and its faithful administration, which hold the carrier to a severe responsibility. He should not be allowed to trifle with the lives and property of others by risking either in unsafe crafts, or by committing them to the mercy of negligent or incompetent officers. And if, at the time the loss happens, the carrier is in the omission of a duty or in the act of doing anything improper, and the omission or act might have had an agency in causing the damage, he ought not to be permitted to impute to the elements in the dangers of navigation a disaster which may have been the result of his own conduct.” This is strong language, and yet I have no hesitancy in subscribing to the principle therein enunciated, and applying the same to the instructions as given in this case, we cannot see that the court has committed error therein.
HI. The third proposition relates to the admission of evidence of the suspension of Little, the pilot, in February, 1888, after this accident occurred. The pilot is asked : “ Did you have any license cancelled ? Yes, sir. When?' Last winter.” This might have been proper enough on cross-examination, but, when the answer of the witness discloses that this was subsequent to the date of the accident, and not connected with it in any manner, the court should have sustained the objection, on the ground of its not being material. There is some evidence of negligence in the case, but it is far from persuasive, and it is not unlikely that evidence irrelevant in its character may have turned the scale.
The admission of this evidence leads to a reversal of the judgment and remanding the cause. All the judges concurring, it is so ordered.