Dawson v. St. Louis, Kansas City & Northern Railway Co.

76 Mo. 514 | Mo. | 1882

Norton, J.

This suit was instituted in the circuit court of Audrain county, to recover damages alleged to have been sustained by plaintiff' by reason of the negligence of defendant in transporting cattle from Centraba to St. Louis, which had been committed to defendant as a common carrier for transportation. The answer of defendant, after denying negligence, set up that the cattle were shipped under a special contract, which, among other things, provided that plaintiff was to take care of said cattle while being transported, and was to load and unload the same at his own risk and expense * * and that “ any claim for damages under said contract shall be made in writing to the general freight agent of the party of the first part within five days from and after the live stock shall have been unloaded or delivered at the point of destination.” On the trial of the cause plaintiff' obtained judgment, from which defendant has appealed, and the chief ground of error assigned is the action of the court in giving and refusing instructions.

The third and fourth instructions given for plaintiff were to the effect that plaintiff was entitled to recover, notwithstanding the contract read in evidence, in which he agreed to make his claim for damages within five days after the unloading and delivery of the cattle at the place of destination, and notwithstanding no such claim was made in five days. These instructions, under the ruling made in the case of Rice v. K. R. R’y Co., 63 Mo. 314, are erroneous. It was held in that case that the common law rule as to common carriers is so far relaxed as to allow them to limit their responsibility by special contract, except for their negligence or misconduct; and it was also held that such a special contract as that set up in defendant’s answer was valid and binding on the contracting parties to the extent above indicated.

As there was some evidence tending to show that the train did not stop long enough between Centraba and Warrenton for plaintiff to look after his cattle; and that, although he had requested the conductor to tell the brakeman to look after his cattle and he would pay for his breakfast at Warrenton, when the train stopped at New Elorence he asked the conductor if he would have time to go forward and look after his cattle, he was told to “ lay down as that man was watching his cattle,” the court was justified m submitting the question of negligence to the JUI7-

Judgment reversed and cause remanded.

All concur.