68 Mo. 268 | Mo. | 1878
This suit was instituted in the circuit court of Shelby county for the recovery of damages alleged to have been sustained on a shipment of forty mules in the cars of defendant.
The petition alleges that on the 20th day of January, 1873, plaintiff delivered to defendant at Shelbina, a station on her road, forty head of mules of the value of $5,000, to be shipped to St. Louis; that said mules were received, and defendant, in consideration of the sum of $116, to be paid by plaintiff, undertook to exercise and observe due and proper care in the carriage of said mules as a common
The answer denies all the allegations of the petition, except tlie receipt of the mules for transportation and the agreement relating to their shipment, and alleges that under the terms of the agreement plaintiff was to take care of and feed the stock, and to assume all risk of injury or amage that the animals might do themselves or to each
After the contract of shipment was read in evidence, which was substantially as set out in the petition?and answer, the plaintiff was offered as a witness, 01.a- . 7 anc^ during his examination was asked: “ Did you request the agent of defendant at Shelbina to telegraph to the agent of the St. Louis, Kansas City & Northern Railway that you would arrive that evening with two car loads of mules for St. Louis, and to be ready to ship them?” The witness was permitted to auswer the question over the objection of defendant, who insisted in the court below, as she does here, that it was irrelevant, that the petition contained no allegation of negligence in this respect, and that defendant, under the contract, was under no legal obligation to telegraph as requested. We think the evidence was pertinent to the issue. The issue was whether the mules were injured by the negligence or misconduct of defendant, and although the special contract had the effect of limiting defendant’s
The mules in question were to be transported from Shelbina to St. Louis, and were to be turned over at Macon City, a point on defendant’s line of road, to the St. Louis, Kansas City & Northern Railway for further transportation to their destination. In view of the fact that such transfer was to be made, and the stipulation contained in the contract (aside from defendant’s duty as a common carrier) that “ due diligence would be used in sending the stock forward,” it was the duty of defendant’s agent, when requested, to telegraph to the agent of the connecting line at Macon City the expected arrival of the stock so as to avoid delay at the latter point. We think the evidence was properly received, especially as it was shown by the agent of the St. Louis, Kansas City & Northern Railway, at Macon City, that it was customary for the agent of defendant at Shelbina to telegraph the agent of the St. Louis, Kansas City & Northern Railway when they had freight to be run over said road to St. Louis, and that in such case it was usual to delay the trains of the latter company till the arrival of defendant’s train.
The action of the court in allowing a witness to state, over the objection of defendant, the condition of the mules when taken off the cars on their arrival in St. Louis, their value in the condition they were in, and also their value if in a sound condition, it is claimed was erroneous. ’We perceive no valid reason why this evidence should not have been received, for the evidence which had been introduced
The court refused ten instructions asked by the defendant, and gave of its own motion four, to which action exception was taken. The instructions given by the court contain a fair exposition of the law as applicable to the facts of the case, and it has been held by this court that in such case the judgment will not be reversed because of the refusal of the court to give other instructions unexceptionable. It is objected that the first instruction makes defendant responsible for injuries occurring beyond its line. We do not think it is- subject to this objection. It is true that it tells the jury that under the contract defendant was bound to transport the mules from Shelbina to the city of St. Louis, and to deliver them at that place, but in the estimation of damages they were confined to such damages as occurred
The objection that the instruction authorized the jury to allow interest is answered by the case of Gray v. Missouri River Packet Co., 64 Mo. 50. We, therefore, . . . think the first instruction was properly given and the third asked by the defendant properly refused.
3__. trang. stook?lconnecting road'
The fourth instruction which was refused, puts the inability of plaintiff to recover on his failure to notify, defendant at Macon City to have the ears eontaining the mules switched up to the chute of the stock pens, till after the engine pulling the train of cars had left Macon City. This instruction was properly refused because'it ignores the duty of defendant to have proper machinery and facilities for unloading stock to be fed when in course of transit it may become necessary to do so, and because it assumes, as a matter of law, that the engine of defendant which pulled the train to Macon City remained a reasonable time after the plaintiff obtained information that the train of the St. Louis, Kansas City & Northern Railway had gone, which fact gave rise to the necessity for unloading the stock. After the ascertainment'of this fact plaintiff certainly was entitled to a reasonable time within which to make the demand, aud we think, under the evidence, the court could not assume, as it was asked in effect to do, that the engine of defendant remained at Macon City such reasonable length of time. The evidence shows that the train of defendant arrived at Macon City after night; that it was storming and cold and sleeting, that plaintiff left the train immediately on its arrival to ascertain about the train of
The fifth instruction was properly refused, because it imposed a duty on plaintiff which devolved on defendant. Railway v. McCarthy, 6 Otto 258; Blackwell v. Fosten, 1 Met. (Ky.) 95.
The sixth instruction was properly refused under the authority of Reugger v. Lindenberger, 58 Mo. 305; and Wag. Stat., § 10, p. 1015.
On the margin of the contract reád in evidence the following words occur: “ Claim for loss and damages must be presented within thirty days from „ . . , . , , . ,, date of shipment m order to receive atten-
tion.” It is contended by appellant that there was no evidence of the presentation of any claim for damages within thirty days, that the first instruction of. defendant should have been given. In the case of Rice v. K. P. Ry. Co., 63 Mo. 314, we upheld a stipulation contained in the body of the contract that no claim for damages should be allowed unless demand was made in writing. The stipulation in that case (as observed in the case of Oxly v. St. L., K. C. & N. Ry., 65 Mo. 629) is distinguishable from such stipulations as the one in this case. There it was expressly agreed that no damages should be allowed unless after demand made. Here the words are vague and uncertain as to what result should follow from a failure to present the claim. If it were intended that no right of action should exist after such failure, and no liability rest upon defendant, it should have been so expressed in the contract, and not left to inference. "Whatevér was intended by the words employed, we cannot construe them so as to deprive the
Affirmed.