115 Mo. App. 633 | Mo. Ct. App. | 1906
— Action for damages against a common carrier alleged to have been sustained in consequence of. negligence in providing cars for the shipment of live stock and in the transportation of the same to market. Plaintiffs recovered judgment in the sum of $25, and defendant appealed. Allegations in the petition pertinent to the questions submitted to us for determination are as follows:
“Plaintiffs further state that on the 20th day of Feb
In the answer, defendant pleaded the shipping contracts signed by plaintiffs, in which are found a number of stipulations that, if enforcible, limit the liability of defendant in various respects. These restrictive provisions are all based upon the consideration of a “reduced rate” and cannot be sustained for the reason that the evidence, including that offered by defendant, shows an entire failure of the consideration stated. It appears that defendant has but one rate for the carriage of sheep from Stanberry to St. Joseph, which is charged in all cases regardless of the value and number of the animals offered for shipment. It must be presumed that plaintiffs in giving their assent to the special agreements embodied in the contract were moved thereto by the representation and understanding that they were receiving a reduced rate for the rights they released and the duties they assumed. If, in fact, the so-called consideration was a fiction, the benefits and Immunities to defendant founded upon it rest upon nothing and fall for lack of support. Fountain v. Railroad, 114 Mo. App. 676; Summers v. Railroad, 114 Mo. App. 452, 79 S. W. 481; Ward v. Railway, 158 Mo. 226. The shipping contracts will he treated as ordnary bills of lading and defendant held thereunder to the common-law duties and liabilities imposed upon common carriers.
In the instructions given, plaintiffs were not permitted to recover for the dead sheep and, in the event of a retrial of the case, no recovery for them should be allowed in any state of the pleadings under the facts disclosed. Conceding the negligence of defendant in failing to furnish the kind of cars ordered, it was the negligence of plaintiffs in knowingly overloading the cars that was the proximate cause of the killing. Plaintiffs are experiencéd shippers and knew before they began loading that the ears were too small for the whole shipment. They knowingly and voluntarily took the risk of overcrowd
Tbe court did instruct tbe jury to find for plaintiffs for the four lost sbeep if they “were lost in transportation by defendant and not delivered to tbe consignee.” This was reversible error. Tbe cause of action pleaded is founded in negligence and with respect to tbe lost sheep it is averred “that on account of tbe carelessness and negligence of defendant and unnecessary violence in handling its trains carrying said sbeep, four of them were lost,” etc. Tbe specific act of negligence charged is “violence in the handling of its trains,” from which but one inference is admissible, that tbe sbeep were lost from tbe.train while in transit as the result of careless operation. There is no evidence to sustain tbe charge. Plaintiffs admit tbe sbeep were lost from tbe pens. Tbe instruction submitted an issue totally at variance with tbe conceded facts. Plaintiffs argue that tbe variance is immaterial because tbe duty imposed by law upon tbe defendant while tbe sbeep were in tbe shipping pens was that of a common carrier and not a custodian, and therefore tbe only facts constitutive of tbe cause of action were tbe reception of tbe sbeep in tbe pens by defendant and its failure to deliver them at tbeir destination. One weakness of this argument, and we need look to no other, is that it overlooks tbe fact that plaintiffs in tbeir petition made a specific act of negligence elemental to tbeir cause of action. . They did not choose to stand upon a general averment, but selected a particular ground, notified defendant to meet them there, and they must recover upon that ground or not at all. Tbe vice of tbe instruction lies as much in tbe absence of any proof to sustain tbe issue presented as in the failure to submit in its entire scope tbe cause of action pleaded.
Another error is properly before us under tbe demurrer to tbe evidence. Defendant contended throughout tbe trial that, had two double-decked cars of tbe dimensions ordered been provided, tbe number of sbeep
For the errors noted, the judgment is reversed and the cause remanded.