117 Mo. App. 211 | Mo. Ct. App. | 1906
Action to recover damages from a common carrier on account of delay in the carriage of live stock to market. Plaintiff had judgment in the sum of three hundred dollars and defendant appealed. Material facts appearing from the evidence introduced by plaintiff are as follows:
On December 12, 1903, plaintiff, a live-stock feeder and shipper, applied through his son to defendant’s agent at Stanberry, Missouri, for five cars, in which to ship eighty-four head of fat cattle to market, stating that the cars were needed for loading on the following Monday morning, the 14th. The son was not certain of the destination of the shipment and because of that fact, the The clause by its plain terms applies only to “loss of or agent did not then enter the order. The following day, the agent was notified that the market at St. Joseph was the one selected and thereupon received the order, and
Defendant introduced evidence tending to relieve it from the imputation of negligence, but, as this issue of fact was submitted to the jury, it is unnecessary to detail the facts bearing upon it adduced by defendant, and our chief concern is with the questions raised under defendant’s request for a peremptory instruction, which the court refused to give.
Plaintiff in his petition founds his cause of action solely upon the negligence of defendant, and the court in the instructions given at his request submitted no other issue to the jury. Doubtless, plaintiff thus restricted the scope of his common-law cause of action in anticipation of the defenses that Avould be interposed under the Avritten contract of affreightment, signed by him before the transportation began. Whatever his motive may have been, plaintiff must recover, if at all, upon the cause of action pleaded, that is to say, the burden is upon him to show that defendant was negligent- either in the furnishing of cars or in the transportation, and that such neg
“The jury are instructed that, under the pleadings and the evidence in this case, the plaintiff is not entitled to recover in this action for the failure of defendant, if it did so fail, to furnish cars for the shipment of his live stock at any specified time.”
In the first instruction given for plaintiff, the issue of defendant’s negligence in failing to provide cars within a reasonable time was submitted and, if we should adopt the interpretation of the instruction, above copied, urged by defendant, we necessarily would have to find that it is in conflict with that given for plaintiff. We are of the-opinion no- conflict exists between them. The evident purpose of the instruction under consideration was to confine the consideration of the jury to the issue of negligence in not observing due care to provide the cars within a reasonable time and to preclude the possibility of a finding based upon the hypothesis of a breach of contract to furnish them at a specified time. No right to recover upon a contract of such character'is asserted in the petition, but, as plaintiff introduced evidence showing a promise by defendant’s agent to provide the cars for use at a specified time, the jury, if unrestrained, would have been free to base a verdict upon a breach of this promise. The only effect of this instruction was to restrict the consideration of the jury
Relative to the second point made by defendant that no negligence is shown in the transportation, it appears that there was a delay of some five or six hours at Conception, the junction point, and one of' two and one-half hours at St. Joseph in switching the cars to the receiving chutes. Defendant attempts to account for the first of these by showing that the cars were forwarded from Conception on the first train of the connecting carrier. No effort is made to explain the delay in switching at St. Joseph. In this state of the evidence, in view of the fact adduced by plaintiff and not denied by the defendant’s witnesses, that the time ordinarily consumed in the entire transportation of stock from Stanberry to the stock yards at St; Joseph is within six hours, a fair inference of negligence arises. True, the burden is upon plaintiff to show negligence, but this fact may be inferred from other facts and circumstances in the absence of direct proof.- The delay in the transportation may
Defendant pleaded in its answer and introduced in evidence the shipping contract signed by plaintiff. Much reliance is placed upon the restrictions upon defendant’s liability as a carrier therein embodied to relieve it from any liability to plaintiff. A carrier is not permitted to contract with the shipper to excuse himself from liability for damages resulting from his negligence, and therefore the contract can have no bearing upon the questions we have discussed. Effect is claimed for it in respects not so embraced; among them the following:
In the contract, the weight of the eighty-three head of cattle was estimated 110,400 pounds and their value stated at fifty dollars per head. When weighed and delivered to the purchaser, the cattle weighed 113,720 pounds and brought in gross a few cents over fifty dollars per head. Among others, the contract contains this stipulation: “And in consideration of the reduced rate aforesaid, it is further agreed that neither said party of the first part nor any connecting line shall be liable for the loss or injury to any of said animals in any amount in excess of the valuation thereof, as stated in the application of the party of the second part, which is hereto attached and made a part of this contract.” It is urged first, that plaintiff is bound by his statement of weight and, as the cattle actually exceeded that weight by more than three thousand pounds, plaintiff cannot recover for shrinkage resulting from the delay; and, second, that he is likewise bound by his statement of value, and, as the cattle brought more per head than the amount at which
It is not necessary to a proper determination of these questions to pass upon the validity of these restrictions in the contract. In our interpretation of them, we assume for argument, without so holding, that they are binding upon the plaintiff, and yet find ourselves unable to sanction the conclusions of defendant. The contract shows in express terms that the weight was only estimated, that is, it was taken by both parties as an approximation for the primary purposes of computing the amount of the freight charges. Being nothing more than a guess, it should not be treated as a conclusive admission against the interest of plaintiff. Equally untenable is defendant’s position with respect to the value placed upon the cattle. The clear intent and purpose of that stipulation is to limit the amount of the recoverable damages to the stipulated value. This is founded upon the idea, upon the correctness of which we express no opinion, that as the freight rate is in part based upon the value of the property offered for shipment, the carrier should be accorded the privilege of so restricting its liability. The fact that the property after injury is worth the value given has no effect upon the question of defendant’s liability. So long as the damages claimed are within the limits of the agreement, the carrier is in no position to say that it is being held to a greater pecuniary responsibility than that for which plaintiff contracted and paid.
Further, it is contended that the petition is fatally defective in failing to allege that defendant received the cattle for transportatiion as a common carrier for hire. There is no direct averment of this fact, but from those alleged it is fairly inferable. Defendant did not attack the petition, but answered tO' the merits and pleaded the entire contract of affreightment, from Avhich it appears beyond question that its relation to plaintiff was that
The demurrer to the evidence was properly overruled and, upon a careful examination of the whole record, we find that the case was fairly tried and submitted. Other points made are so clearly without merit that we do not feel called upon to give them special notice. The judgment is affirmed.