Ducker v. Barnett

5 Mo. 97 | Mo. | 1838

Tompkins, Judge,

delivered the opinion of the court.

William B. Barnett and Charles H. Sheofe, brought their action before the circuit court against William Ducker, and having there obtained a judgment, Ducker prosecutes his writ of error to reverse that judgment.

From the bill,-of exceptions it appears that Ducker kept a warehouse on the Missouri river;-and that among many other-articles put on shore near his warehouse for the merchants of Jackson county was a hogshead of sugar, weighing about 1,100 pounds, belonging to the plaintiffs. It was proved that this hogshead of sugar was landed on the second bank of the river above high water, and that the defendant had been often heard to say that he would not receive and be responsible for goods deliv■■ered on that bank. It did not appear that the plaintiffs or either of them heard him say so; but he promised, at the request of one ofthem, to take charge of it, andattempt-ed to roll it on the higher bank, with the aid of several persons, and being unable to do so, he let it remain there all night;, and next day a man coming to the landing with a wag0n anci team to carry a load off, he was requested by Ducker,the defendant, to draw the hogshead of sugar to the top of the bank; the hogshead was put on a slide, and in attempting to draw it to the top of the upper bank, the pins or standards in the hinder part of said slide, or one of them, broke or came out, and the hogshead rolled into the river, and was lost. The witnesses stated that the fore part of the slide ran upon a log by sliding down the slope of the bank, and that at that time one or more of the pins broke or came out of the hinder part of the slide, and the hogshead was lost. On motion ofthe plaintiffs, the court instructed the jury that the defendant was responsible, unless they should find that it was out of his power to save the hogshead from the acts of God or the enemies of the State.

A warehouseman aaa°common8cart rier; he is only bound to use arty placea under his charge.

The giving of this instruction is assigned for error. It ¿oes not appear to me to be material whether the plaintiffs had or had not heard of the defendant’s declaration that he would not receive and be responsible for goods on the second bank. He took charge of this of sugar at the request of one of them, and having done so, he became answerable for using ordinary diligence. The plaintiff must be presumed, as he was on the spot, to be informed of the state of the road up the bank, and to have requested the defendant to take charge of the sugar, subject to the risk of a good or bad road, as the case might be, and the jury should have been instructed that if they found that the defendant used ordinary diligence in attempting to get the sugar to the upper bank, they must find for him.

The circuit court, in my opinion, committed error in telling the jury that the defendant was liable for all accidents, except such as happened from the acts of God or the enemies of the State. Its judgment ought then, in my opinion, to be reversed; and the rest of the court concurring, it is reversed, and the cause remanded.