156 Mo. App. 259 | Mo. Ct. App. | 1911
Lead Opinion
This is an action against common carriers prosecuted by the shipper of a carload of mules to recover damages for an injury sustained by one of the animals during transportation. The cause is here on the appeal of both defendants from a judgment of $210 rendered against them.
In our statement of facts and opinion, we shall refer to the first named defendant as the “Milwaukee Company” and to the other defendant as the “Wabash Company.” Plaintiff delivered a carload of mules to tlie Milwaukee Company at North English, Iowa, for transportation to St. Louis. The contract required that the car be transferred to the Wabash Company at Ottumwa, Iowa, where the two roads intersected and that the latter company complete the transportation to St. Louis with the privilege to the shipper of unloading at Centralia, Mo., an intermediate point on the Wabash road. A single charge for the whole transportation was imposed by the contract and was paid by plaintiff to the Wahash Company and divided by the two companies. The mules were loaded in a stock car and were carried to OttumAva by the Milwaukee Company and there delivered to the Wabash Company. They Avere hauled by the latter company to Centralia where plaintiff unloaded them and found that one of the animals had a badly injured hind leg. A broken slat in the side of the car showed the cause of the injury. In some manner the slat had been broken during the transportation and the leg of the mule had been protruded through the opening and had been injured in the efforts of the animal to extricate itself. Blood and hair were found, on the broken ends of the slat and there is evidence to the effect that the slat, which was of wood, was de
It is argued by defendants “neither the pleadings onr the evidence disclosed a joint undertaking or a joint liability on the part of the defendants and hence the in
Next, it is argued that the evidence fails to show any breach of duty on the part of the carriers and does not show that the injury to the animal was due to its own inherent vicious propensities. The rule is well settled that “while common carriers are insurers of inanimate goods against loss and damage, except such as is inevitable or caused by public enemies, they are not insurers of animals against injuries arising from their nature and propensities, and which could not be prevented by foresight, vigilance and care. In the transportation of live stock, in the absence of negligence, the carrier is relieved from responsibility for such injuries as occur from or in consequence of the vitality of the freight.” [Cash v. Railroad, 81 Mo. App. 113; Crow v. Railway, 57 Mo. App. 135; Libby v. Railway, 137 Mo. App. 276.] And we take judicial notice of the propensity of mules to kick but after all is said in favor of the position of defendants that may reasonably be said, the evidence of plaintiff still accuses defendants of a breach of the duty to furnish plaintiff a car that would be reasonably safe for transporting the stock without injury from any causes that should be reasonably anticipated. [Betts v. Railway, 60 N. W. (Ia.) 623.] We do not say that there was any obligation on the part of the carrier to furnish a car that would resist the kick of a lusty mule but we do say that the jury was entitled to the inference that the injury to the animal was caused by the defective slat
The only error we find in the record is in the instruction on the measure of damages, given at the request of plaintiff,' as follows: “If the jury find for the plaintiff, they may award him such damages as the jury find to be the difference, if any, in the market value of said mare mule at the time she was delivered to the defendants for shipment, and the condition of said mare mule at the time she arrived in said car at Centralia, Missouri, not to exceed two hundred dollars; and in addition thereto, the jury may award whatever sum, if any, the plaintiff was compelled to pay out and expend and did pay out- and expend for medical aid and treatment of said mule, on account of said injuries, not to exceed the sum of twenty-five dollars, and in all not to exceed two hundred and twenty-five dollars, the amount sued for.” Plaintiff testified that in giving medical treatment to the animal he incurred some expense but he could not state the amount of his outlay. The evidence presented the quantum of this item of damage as a matter of pure guesswork. In the absence of supporting-evidence this element of damage should not have been submitted to the jury. However, this error can be cured by remittitur and on condition that within ten days.from the filing- of this opinion, plaintiff shall file a remittitur of twenty-five dollars, the judgment will be affirmed. Otherwise, it will be reversed and the cause remanded.
Rehearing
A rehearing was granted in this case, and it has been reargued. On further consideration we see no reason for departing from the opinion heretofore rendered, except that as the plaintiff has filed a remittitur of twenty-five dollars, the judgment will be affirmed, less that sum; the costs of the appeal being taxed against the plaintiff.
