57 Mo. App. 135 | Mo. Ct. App. | 1894
— The plaintiffs, who are partners,brought this action to recover damages from the defendant, caused to them in the transportation of a valuable jack from Mexico, Missouri, to' the town of Curryville, a distance of about thirty miles. The petition charges the defendant with - negligence in the transportation of the animal, which is alleged to have been of the value of $1,000 when it was shipped, and to have been injured to the extent of $250, for which amount plaintiffs pray judgment.
The answer sets up a special contract by which the plaintiffs agreed that they should load the jack themselves, and that defendant should not be liable for any damage to the jack caused by improper loading, insecure fastening or in consequence of its being unruly or weak. The answer further states that it was provided by said special contract that, in case of loss or
The reply.is in the following', words: “Plaintiff for reply admits he paid $8.70 for the transportation of the jack. He denies that the contract referred to in defendant’s answer is binding on the plaintiffs, and denies all other allegations of the answer.”
The cause was tried by a jury, the trial resulting in a judgment for plaintiff for $250. The defendant assigns for error the refusal of the court to enter judgment in its favor upon the pleadings, and also in refusing to sustain its demurrer to the evidence. The defendant also contends that the court erred in giving and refusing instructions.
The first error assigned is untenable. The defendant by introducing evidence to substantiate the affirmative defenses contained in its answer, and submitting such evidence to the jury, waived whatever rights it may have had arising from want of a proper reply. Nelson v. Wallace, 48 Mo. App. 193, 199, and cases cited.
The second assignment -of error is based on the
In the case at bar the duty to attend to the loading and unloading of the jack was by the terms of the contract upon the shippers. The plaintiffs adduced evidence showing that the jack was carefully loaded in a ear all by itself, and was carefully tied and bedded; that he was moved around before the loading, and moved with freedom and ease; that he was apparently physically sound in every respect; that the transit was only thirty miles; that during the transit the train was repeatedly jerked with a violence not necessarily incicident to the movement of freight trains, and that, when the jack was redelivered, he showed fresh abrasures of the skin in several parts of his body and, and was so stiff and lame that he was almost unable to move. They further showed that, as soon as stabled, he lay down, and that he was not able to get up for
Touching the notice the plaintiffs showed that within three days' after the accident, they called upon the defendant’s station agent and informed him orally that the jack was injured, requesting him to write to the general freight agent to that effect and that they would present their claim for damages; that such agent within five days informed the general freight agent of the defendant of that fact, and told the plaintiffs to wait a few days to see what was the extent of the damage; that the plaintiffs themselves wrote to the •general freight agent repeatedly, and received from him the following reply to their second letter: “Your claim, No. A. 16394, is at present in the hands of our agent, Mexico, for information. As soon as the papers are returned from him, will see that the claim receives prompt attention.”
It will be thus seen that there was substantial evidence both of the fact that the injuries to the animal were the result of the defendant’s negligence, and of the further fact that written notice of the claim was given within five days, or that, if not given within five days, the delay was owing to the defendant’s conduct, and that a strict performance of the condition was waived by the defendant.
The instructions given on behalf of both plaintiffs and the defendant put the case to the jury on the theory, that it was incumbent upon plaintiffs to show negligence in the transportation of the animal. The defendant’s instruction to the effect that, if the jury found for plaintiffs, they should in no case assess their damage at a greater amount than $100, was properly refused. A limitation of damages will be upheld, when fairly made and supported by some consideration. Conover v. Express Co., 40 Mo. App. 31; Rogan v.
The defendant’s first refused instruction was properly refused, because argumentative, and was fully covered, as far as the defendant was entitled to it, by other instructions given on its behalf.
There was no evidence to support the defendant’s second refused instruction that, if the injuries sustained by the jack occurred by reason of its improper loading, the jury should find for the defendant. All the evidence was to the effect that the jack was carefully loaded, tied and bedded.
The only error committed by the court was the giving of plaintiffs’ third instruction, which was to the following effect:
“The court instructs the jury that the special contract read in evidence by the defendant is not binding •upon the plaintiffs, unless you find from the evidence that the defendant, in consideration of the stipulations in said contract, either agreed to carry said jack for less than the usual and reasonable rates for carrying jacks from Mexico to Curryville, or that the defendant gave to the plaintiffs some advantage or benefit in shipping or carrying said jack, which the plaintiffs would not have received but for entering.into said contract.”
This instruction was too broad. In the absence of any consideration supporting the special contract, the limitation of the damages was not binding upon the plaintiffs; but there is no reason why other parts of the contract, voluntarily entered into between both parties, as to the loading and unloading of the jack
The judgment is affirmed.