George v. Chicago, Rock Island & Pacific Railway Co.

57 Mo. App. 358 | Mo. Ct. App. | 1894

Smith, P. J.

— This was an action ex delicto brought before a justice of the peace by the plaintiff against the defendant for a breach of the duties of a common carrier imposed upon it by the common law in that the plaintiff had intrusted to the defendant at Mercer, in this state, one hundred and one head of beef steers which it agreed to deliver at the Union Stock Yards at Chicago, in the state of Illinois, and that the defendant failed to so deliver two head of said steers, etc.

The defendant relied upon, as a defense, the bill of lading under which the steers were shipped. It was introduced in evidence and, among other provisions, contained the following: “Which stock is to be loaded, unloaded, watered and fed by the said J. Greorge, or his agents, and in consideration of free transportation for two persons, hereby given by said railway company, such persons to accompany the stock, it is agreed that the cars containing the stock of said J. Greorge are in the sole charge of such person, or his agents, for the purpose of attention and protection of the stock while in transit, and the company assumes no responsibility for safety of stock in charge of shipper, or his agents, whether from theft, heat, jumping from the car, injury in loading or unloading, injury or damage which stock may -do themselves, or which may arise from the reasonable delay of trains, or from any other cause, or accident or injury, except those occurring by reason of gross negligence of the company.”

There was a trial and judgment for plaintiff, and from which the defendant appealed.

It appeared from the bill of lading .that the plaintiff shipped four carloads of steers, as claimed by him in the statement of his cause of action, but it was denied that there were one hundred and one of them. The defendant’s station agent, at the place where they were received, did not count and state the number of them in the bill of lading, as was his duty to do under section 2593, Revised Statutes. But the uncontradicted testimony of the plaintiff and one of his witnesses established the fact that the plaintiff had placed in defendant’s care one hundred and one beef steers, and that the latter had delivered the plaintiff at Chicago only ninety-nine of them. This showing with the proof of the value of the steers, about which there was no question, was sufficient to make out the plaintiff’s prima fade right to recover. Costigan v. Trans. Co., 33 Mo. App. 269; Nickey v. Railroad, 35 Mo. App. 79; Doan v. Railroad, 38 Mo. App. 408; Canover v. Express Co., 40 Mo. App. 31; Read v. Railroad, 60 Mo. 199; McFadden v. Railroad, 92 Mo. 343.

The stipulation in the bill of lading, from which we have already quoted, was, under the well settled law of this state, admissible in evidence to limit the liability of the defendant to the extent the law permits. A common carrier is not permitted to contract against its own negligence. Clark v. Railroad, 64 Mo. 446; McFadden v. Railroad, 92 Mo. 348. So it has been ruled that if a common carrier attempts to relieve itself from legal liability for failure to deliver goods it must make out a case in which no negligence of its own appears. Davis v. Railroad, 89 Mo. 340; Nickey v. Railroad, 35 Mo. App. 79.

In this state of the case the burden was laid upon the defendant, if it would exonerate itself from liability, to prove, since it had not delivered the steers, that the loss was occasioned by reason of some one or more of the exemptions of the bill of lading. And when the loss occurs from any of the causes excepted in the bill of lading the exception must be the proximate and sole cause of the loss. And when the loss is attributable to such, still, if the negligence of the carrier mingles with it and is the active and co-operating cause, he is responsible. Read v. Railroad, supra; Davis v. Railroad, 89 Mo. 340; Witting v. Railroad, 101 Mo. 641; Doan v. Railroad, supra.

Otis Co. v. Railroad, 112 Mo. 631, was where it was admitted that the loss occurred from a cause excepted in the bill of lading, and it was held that the plaintiff could only recover by showing that the fire was the result of negligence, and the burden of proof of the issue rested upon it. There are quite a number of cases cited in Witting v. Railroad, supra, which hold that when a carrier relies upon a contract of exemption he must bring himself within the exemption, and that he does not do this by simply showing that the goods were lost by the excepted peril or accident, but that he must go further and show that he was free from negligence contributing to the loss. But it is held, in the case last referred to, to be the established law of this state that when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is on the plaintiff to satisfy the minds of the jurors, by the evidence taken as a whole, that the negligence of the defendant caused the damage, or was an active co-operating cause in producing it. The result of the rule is the same, whether the action is grounded on the negligence of the carrier or on his common law undertaking as an insurer, for in either case when the carrier shows to the satisfaction of the jury that the loss was caused by some act which exonerates it from liability therefor under the bill of lading, and the case stops there, the plaintiff can not recover. The burden is thus cast upon the plaintiff to show that the negligence of the carrier caused the loss, or was the co-operating cause in producing it, or he cannot recover. Otis Co. v. Railroad, 112 Mo. 622; Read v. Railroad, supra.

The third and fifth instructions, given by the court of its own motion, are not obnoxious to this rule, for they in effect told the jury no more than that, if they found from the evidence that the cattle were lost by some one of the perils or accidents excepted in the bill of lading, to find for the defendant, unless the same was occasioned by ‘ The negligence of defendant or its agents or servants.” There was absolutely no competent evidence showing how the steers were lost. And since it was not shown that the loss of the steers was occasioned by some act which was recognized by the bill of lading as an exemption, of course it was impossible to show that the, negligence of defendant was the active or co-operating cause of the loss. These instructions did not place the burden of proof, in respect to negligence, anywhere. They left it- to the jury to determine from the evidence as a whole whether there was such negligence. These instructions, as well as the fourth given by the court of its own motion, were not supported by any substantial evidence; they were mere abstractions, having no proper place in the case. But since, under the evidence as we view it, the jury could only have found for the plaintiff, it is not perceived that such instructions were harmful, and therefore the action of the court in giving them did not constitute- reversible error.

The defendant further objects that the judgment ought not t-o stand, for the reason that one of the attorneys of the plaintiff, in the course of his argument before the jury, stated that the defendant’s station agent, where the plaintiff’s cattle were received by it on board of its cars, did not county them as required by section 2593, Revised Statutes. It is true that the action is not grounded on the omission of this statutory duty, still,' since the defendant endeavored to put in issue the fact as to the number of cattle received by it of the plaintiff, we can not see that such reference by plaintiff’s attorney was so grossly improper as to call for more than the admonition of the court, at the time, to the effect that the discussion of the law be confined to the instructions given by the court. Even if the remarks of counsel alluded to exceeded the bounds of propriety, still we would not feel justified in -reversing the judgment on that account in a case like this, -where it is so manifestly for the right party.

The judgment must be affirmed.

All concur.