38 Mo. App. 408 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The petition in this action states that the defendant is, and was at the times hereafter mentioned, a corporation and a common carrier of goods and chattels for hire between St. Louis and Louisiana in the state of Missouri; that, on the twenty-second day of November, 1888, at St. Louis, in consideration of the sum of six dollars and thirty cents then paid to the defendant by the . plaintiff, the defendant undertook and agreed safely to carry from St. Louis to Louisiana and there deliver to the plaintiff or his order two horses, one a bay horse, and one a golden sorrel horse, sixteen hands high, foaled May 10, 1882, and named Transient, which the plaintiff then and there delivered to the defendant, who received the same upon the agreement and for the purposes before mentioned; that the said horse Transient was valued at fifteen hundred dollars; that the defendant did not safely carry and deliver the said horse Transient pursuant to said agreement, but, on the contrary, the defendant so negligently conducted and so misbehaved in regard to the same in its calling as carrier, that it carelessly and negligently suffered and permitted said sorrel horse Transient to fall out of its car on November 22, 1888, and to be run over and killed by its train, so that said horse was wholly lost to this plaintiff, to his damage in the sum of fifteen hundred dollars.
The reply consisted of two parts ; ■ (1) A general denial of the new matter set up in the answer. (2) A plea of non est factum as to the special contract set up in the answer.
The plaintiff adduced evidence to the substantial effect that he had a very fíne blooded horse named Transient, which he desired to send to Louisiana, Missouri, to be there wintered; ‘that he sent along a common horse to keep company with Transient; that the two were taken, in the middle of the day, from his stable in St. Louis, to the St. Louis Union Stock-yards Company, to be by that company loaded upon a car of the defendant for the purpose of being so shipped; that the employe of the plaintiff, who thus took the horse to the St. Louis Union Stock-yards Company, delivered to the agent of that company seven dollars in money, six dollars and thirty cents of which ivas to pay the freight on the horse to Louisiana, and seventy cents of which was to pay for the necessary hay to be put into the car; that the servants of the stock-yards company in the presence of a switchman of the railroad company, then acting as its foreman, loaded the horses into one of the defendant’s cars, and left them untied in the car. The evidence adduced by the plaintiff also showed that the horse Transient in some manner escaped from the car, fell upon the track, and was run over and killed.
Touching the manner in which the horse was killed, the defendant gave evidence tending to show that, at the request of the servants of the stock-yards company, the acting foreman of the defendant, who had control of the making up of its trains, opened the end door or window of the car in which the horses had been placed without being tied; that this end door or window was an aperture commencing about half way up from the bottom of the car eighteen inches wide and thirty inches high; that, after the horses had been thus placed in the car and the side door securely fastened, and this aperture opened to give
Touching the special contract set up in the answer, we find, on reading the record, that the burden was on the defendant to show that this contract had been executed at the time when the horse -was killed. The horses had been delivered by. the plaintiff’s employe to the stock-yards company, with shipping directions, and with money sufficient to pay the freight and to purchase some hay to be placed in the car. In the view which the court took in one of the instructions which it gave, the stock-yards company was thus constituted the' agent of the plaintiff to do what was necessary in the shipment of the horses, and consequently to sign for him the necessary or usual shipping contract. The defendant’s evidence tended to show that this shipping contract was in fact signed by the clerk of the stockyards company, who also had authority to sign for the railway company, prior to the time when the horse was killed; but, as the burden was on the defendant to establish this fact, it became a question for the jury. The trial court could not treat it as an established fact, since the credibility of the testimony by which it was sought to establish it was for the jury; nor can we so treat it for the same reason.
It is perceived that the plaintiff did not draw his petition upon the mere theory of charging the defendant on its common-law liability as a common carrier, but alleged that the horse was killed through the negligence and misbehavior of the defendant. The plaintiff thus tendered the issue of negligence. The answer denies that the servants of the defendant were guilty of any negligence or carelessness in killing the horse.
It is the settled law in this state that a common carrier cannot by contract with the shipper exonerate himself from liability for the negligence of himself and servants in the performance of the duty which he has
“ 7. The court instructs the jury if they find that the car was loaded by the Union Stock-yards Company, and appeared to have been loaded in the customary and usual way of loading such cars, and that there was no negligence apparent in the manner of loading said car, then defendant was justified in taking possession of said car and removing the same for the purpose of transportation, and would not be liable for any damage sustained by plaintiff in consequence of the escape of the horse from the car, unless it was apparent to the defendant, or to its agents who handled said car, that it was probable said horse would endeavor to escape or get injured if an attempt was made to remove said car.
“8. If you find from the evidence in this case that the Union Stock-yards Company did in fact load said horses, and defendant had no hand whatever in loading said horses, or in preparing the car to safely carry the same, except under the directions of the agent of the Union Stock-yards Company, and, if you find from the evidence that the defendant undertook to move said car with said horses loaded by said Union Stock-yards Company, and without making any change in the manner of loading, except as directed by said Union Stock-yards Company, and did remove said car, and during its removal said horse escaped and was injured, then and under such circumstances the defendant was not responsible for the method of loading said horses adopted by the said Union Stock-yards Company, and could not be made so responsible, unless said railroad company, defendant or its agents handling said car, saw or by the use of ordinary care and prudence could have seen that there was a probability that*417 the horse would try to escape from the car and get injured.”
One of the assignments of error is the action of the court in so modifying these instructions. We see no error in this action of the court. Although the plaintiff, through his agents, assumed the duty of loading the horses, yet we are of opinion that, if his agents had left them in such a manner that the car obviously could not be moved with safety to the horse, and, notwithstanding this, the car was moved and one of the horses was injured, the defendant would be liable on the ordinary rule of negligence laid down in the leading case of Davies v. Mann, 10 Mees. & W. 545. The principle there ruled was that, if one man sees the property of another man negligently exposed to injury, the former must, notwithstanding the negligence of the owner of the property, use reasonable care to avoid injuring it.
On the other hand, we think that the court erred in refusing the following instruction, tendered by the defendant:—
“Negligence is the doing of an act which experience indicates will probably result in injury to another. If the jury find that the horse escaped from a door or window in the end of a car in which it had been loaded, and if, from the structure, size and elevation of said door or window, and the size of the horse that was injured, it was wholly improbable that said horse could escape through said end door of window, then starting said car with said door or window open would not be negligence, and defendant would not be liable for the escape of the horse through said door or window, if he did so esca.pe and get killed.”
This instruction was directed to the evidence, adduced by the defendant, to the effect that the horse jumped out of the end window. ■ The credibility of this testimony was for the jury. The plaintiff evidently did,,
Complaint is made of the action of the court in giving the following instruction :—
“1. The court instructs the jury that unless they find and believe from the evidence that the bill of lading read in evidence, and dated November 22, 1888, was entered into in behalf of the plaintiff by the officers of the Union Stock-yards before said horse, ‘ ‘ Transient, ’ ’ was killed, it is not binding on the plaintiff. And the court further instructs you that, even though you find from the evidence that said bill of lading was entered into before said horse was killed, still it is not binding on the plaintiff, unless you find from the evidence that the defendant, in consideration of the stipulation therein contained, either agreed to carry said horse for less than the usual and reasonable rates for carrying horses of that character from St. Louis to Louisiana, Missouri, or gave to the plaintiff some advantage or benefit in shipping and carrying said horse, which he would not have received but for entering into said' contract. But*419 if you find from the evidence that the plaintiff did, by reason of the entering into the said bill of lading or “Live-stock contract,” read in evidence in his behalf, by the said Union Stock-yards Company, receive such reduction of rates for the transportation of said horse, or did receive some other advantage or benefit in shipping and carrying him as above indicated, then said contract was, and is, binding on him, if you find from the evidence that it was entered into in his behalf as stated in the other instructions of the court.”
It is perceived that this instruction contains two distinct elements; it submits to the jury the question of the validity of the special contract, pleaded by the defendant in its answer, in two aspects. In the first place, it submits to the jury the question whether such a contract had been entered into before the horse was killed, instructing the jury that if it had not been so entered into, it was not binding on- the plaintiff. We have already observed that the burden of establishing this fact was upon the defendant, and that it was a question for the jury. In this branch of the instruction there was, therefore, no error.
But we cannot hold the same of the second element of the instruction. In this part of the instruction the question is submitted to the jury whether the special contract is supported by a good consideration, namely, the consideration of the plaintiff receiving reduced rates for the transportation of the horse or of his having received “some other advantage or benefit in shipping and carrying said horse, which he would not have received but for entering into the said contract. ” It is true that the pleadings were so drawn as to raise an issue touching the consideration of this contract. The words of the answer, in which the contract was pleaded, averred that it was “for a valuable consideration,” and this was controverted by that part of the reply which consisted of a general denial of the new matter set up
In respect of this question this case is different from the case of McFadden v. Railroad, supra, in this, that, in that case, evidence was adduced impeaching the recital of the contract in respect of its consideration, and the supreme court in its opinion.laid stress on the fact that no exception was saved to the admission of that evidence. We here see no such evidence. The court gave instructions on the theory that, if the special contract which the defendant pleaded and offered in evidence was binding on the plaintiff, it operated to reduce the liability of the defendant to the sum of one hundred dollars, although the horse may have been killed by the defendant’s negligence. We are of opinion that this was not a proper application of the law to the clause of the contract which attempted to limit the liability to that sum. That clause was as follows : “ It is also agreed that the liability of the company for damage to valuable, live stock shall not exceed one hundred dollars for each animal, except by special agreement.” Á distinction is taken under the decisions in this state, between a contract imposed by a common carrier on a shipper which contains a general limitation of value, and a contract between the carrier and the shipper in which the value of the thing shipped is
This case, then, is not like the case of Harvey v. Railroad, supra, where the agent of the defendant asked the agent of the plaintiff the value of the horse, and was told that its value was one hundred dollars. But it is like the case of McFadden v. Railroad, supra, where it was held that the limitation as to value did not operate to reduce the damages to which the plain biff was entitled in the case of negligence.
Moreover, it is to be observed that the language above recited from the contract is a general printed clause, applicable to any kind of an animal which might be shipped under the contract, and the contract itself shows that such an animal might be a horse, a mule, a stallion, a jack, a calf, a sheep or a hog. The language employed does not import a special agreement between the shipper and the carrier that either of the horses tendered and received for shipment should be regarded as of the value of one hundred dollars in case of loss. It was not, by its terms, a contract liquidating the damages, since, notwithstanding its terms, the carrier might have proved, if such were the fact, that the horse killed was not worth fifty dollars. We equally say that, in the absence of any fraud or misrepresentation as to the real value of the horse, the plaintiff is entitled, if it shall be established that the horse was killed through the negligence of the defendant, to recover its real value, although it may be in excess of one hundred
The judgment will be reversed, and the cause remanded.