57 Mo. App. 550 | Mo. Ct. App. | 1894
Lead Opinion
On trial of this cause plaintiff recovered damages from defendant for negligent transportation of a car load of horses from California, Missouri, to St. Louis. The negligence complained of, as narrowed down by the instructions, consisted in a refusal to water and feed the horses or to permit plaintiff to water and feed them.
The stock was shipped under a special contract which recited that the rate therein agreed upon was a reduced rate and that in consideration thereof the shipper released defendant from much of the obligation it would otherwise have been under without the contract. The delay here was caused by a washout and floods, which were released by the contract. But while the delay was finally conceded by plaintiff to have been excusable he charged that he should have been permitted, while the train was detained at Chamois, to feed and water the horses, and that in consequence of not doing so they were damaged and injured — that they became restless, nervous and uncontrollable so that they inflicted injury upon themselves. The contract, however, among other provisions, pro
A reduced rate of freight is a sufficient consideration to support such contract. But it has been decided that unless it be, in fact, shown to be a reduced rate the contract is without consideration. McFadden v. Railroad, supra.
In order to show that the rate in this contract was a reduced rate, defendant introduced two witnesses, the local agent and the clerk in his office. The record of this part of the trial shows this condition of affairs, though, perhaps, not in the order in which I now state it. The witness stated that this was the usual and customary rate on such shipments when such contracts were signed; and he also stated that he had never charged any other rate, though it clearly appears from the whole of this portion of the record, that the reason he never charged any other rate was because he always took shipments under contracts similar to the one in this case. It clearly appears that in the absence of a contract there was a higher rate. In other words, but for the contract a higher rate would be charged. The witnesses were not permitted to state this in a way fair to the defendant. The defendant asked several questions looking to the same end on this subject and the witnesses were not permitted to answer. The several rulings on this branch of the case were prejudicial.to defendant’s interests and were against what we conceive to be its rights in the premises. The defendant’s contract releasing down to a valuation of $100, is only
We have discovered no objection to the court's action on instructions, of any substantial nature. Plaintiff's instruction number 2 should be confined to a lack of offering an opportunity for plaintiff himself or his servants to feed and water his stock, since the contract puts that duty upon him. It is not proper to load the instruction with an alternative of what defendant should have done as to feeding, though perhaps under the facts of this case it would not be reversible error.
We discover no error as to the court's ruling either in the evidence or instructions as to the notice of damage. We. can see nothing looking to a compromise in the evidence allowed as to conversations with defendant's agent at St. Louis concerning the loss.
The questions in this ease are few. If defendant negligently refused plaintiff an opportunity to feed and water at places of delay when such opportunity might have been allowed and the damage and injury resulted from this, plaintiff should recover. As to the amount of plaintiff’s damages, if the contract in evidence has a consideration such as we have discussed, then plaintiff's recovery will be limited by the contract.
Eor the errors mentioned the judgment will be reversed and the cause remanded.
Rehearing
— Plaintiff seems to be impressed with, the idea that we have ruled that he is limited at another trial to the one question of negligence, viz.: That defendant did not afford him an opportunity during the delay of the horses to unload, feed and water them. There is no intimation in the opinion to justify such impression. We stated what is patent from the record, that by the instructions submitted by plaintiff, all of which were given, he abandoned all allegations of negligence except that defendant did not unload, feed and water the stock and did not afford plaintiff an opportunity to do so. This is all that plaintiff asked to be submitted to the jury’ at the trial. We have not undertaken to say what part of his allegations, if any, he will, or will not, abandon at a future trial.
We also ruled that since plaintiff, by special contract with defendant, agreed to load, unload, feed and water his stock, he should not incumber instructions with a statement as to defendant’s duty to do this. Defendant must, of course, afford plaintiff an opportunity to do so, by putting the car at the proper place at the proper time; but it, itself, was relieved of any obligation to unload, feed and water by the express terms of the contract. The case of Dun v. Railroad, 68 Mo. 268, instead of being opposed to this view as is insisted by plaintiff, supports it. See instruction 1, at page 270, and the court’s remarks, page 277, saying it was a fair exposition of the law. The remarks at page 279, as to the fifth instruction refused, in connection with the instruction itself and the authorities there cited are not as apt, perhaps, as they might have been. The authorities cited have no reference to defendant’s duty, notwithstanding exempted by contract to water and feed live stock. It is quite clear the statement of the
II. We did not consider the second instruction given as to the condition of the car for defendant for the reason that it was not a matter of complaint here, since plaintiff obtained judgment below. On retrial the rule of law in this regard, as announced in the cases of Potts v. Railroad, 17 Mo. App. 394; Brown v. Railroad, 18 Mo. App. 569; Mason v. Railroad, 25 Mo. App. 480, and Haynes v. Railroad, 54 Mo. App. 582, will govern as it may turn out to be applicable under the evidence.