141 Mo. App. 453 | Mo. Ct. App. | 1910
This is an action against a common carrier to recover damages for the failure of the carrier to transport 224 head of stock cattle from Versailles in this State to Mansfield, Illinois. Defendant, received the cattle, agreed to carry them for hire and did carry them some fifty or sixty miles but, being stopped by a wreck on its own line, was compelled to take the cattle back to the starting point where they were delivered to plaintiff and a few days later were shipped by him to Mansfield, over another railroad. The damages sustained in consequence of this abortive attempt at transportation are the subject of the demand which plaintiff seeks to found on negligence of defendant. A trial of the issues presented by the pleadings and evidence resulted in a verdict and judgment for plaintiff for $911, and the case is before us on the appeal of defendant.
The negligence alleged in the petition is “that the defendant by and through its negligence, wholly failed
The answer contains a general traverse and among other special defenses alleges, in effect, that the wreck which stopped the shipment and compelled defendant to turn back was due to unavoidable accident and not to any negligence of defendant.
Material facts disclosed by the record thus may be stated: Plaintiff, a stockman, living five or six miles from Versailles, advertised a sale of the’stock cattle in controversy, to be made September 14, 1907, in Mansfield, Illinois. On September 11, he delivered the cattle at Versailles and he and defendant entered ifito a written contract for their transportation to Mansfield, which in the ordinary course of business should have been accomplished in ample time for the advertised sale. In the answer defendant pleads certain terms and conditions of the written contract, but since the. cause of action alleged in the petition is based on negligence, it is not necessary to waste any time on the contents of the contract and their legal import. Plaintiff must prove the negligence he avers or lose his case and on proof of such negligence, the exemptions and restrictions stipulated for in the written contract become ineffectual since, all other considerations aside, authorities unanimously agree that a common carrier in such cases cannot relieve itself by contract from liability for the consequences of its own negligence.
Defendant argues that the evidence disclosed no cause of action and, therefore, that the. court erred in refusing to instruct the jury to return a verdict for defendant. We agree with defendant that in actions for delay in the transportation of live stock, the burden is on the shipper to the end of the case to plead and prove that the cause of the delay was negligence of the carrier.
As is said in Elliott on Railroads, sec. 1424: “The rule in relation to liability for delays in the course of
And in Ecton v. Railroad, 125 Mo. App. 223, this court, speaking through Ellison, J., said: “Negligence is the ground of plaintiff’s complaint and if it consists in 'delay the plaintiff must prove that such delay was the result of negligence on defendant’s part. Mere proof of delay is not proof of negligence. -There must be something additional which characterizes the delay as culpable.”
On the theory that the action before us is for negligent delay or, at least, is thoroughly analogous to an action of that character, we must hold that it comes under the rule to which reference has just been made. Plaintiff contends he has satisfied the rule by showing that the interruption to the transportation was due to a wreck on defendant’s railroad. We agree to this contention. “The occurrence of a wreck is prima facie the result of the carrier’s negligence. This presumption may be overcome by proof that its cause was unavoidable by the exercise of reasonable care, but the burden of proof is shifted to the carrier when the fact is made to appear that the Avreck was the producing cause of the delay.” [McCall v. Railroad, 117 Mo. App. 477.] This proposition is not disputed, but defendant argues that the prima facie effect of the fact of the wreck to establish negligence has been overcome completely by evidence introduced by defendant Avhich shows beyond question, so defendant claims, that the wreck was ac
It must be conceded this evidence very strongly tends to support the conclusion that the wreck was accidental, but it is not conclusive, especially when considered in connection with evidence adduced by plaintiff which just as strongly tends to show that the broken flange was a result; not the cause of the derailment. There is evidence that back (east) of the nicks in the outer rail, the ties for a distance of more than one hundred feet bore marks of earwheels showing that one or more of the cars must have jumped the track before reaching the place of the marks on the rail; that some of the iron braces on the north side of the outer rail were mashed as they would be had they been struck by the flanges of derailed earwheels; that for two miles or more the train which was an extra freight, had been running down grade and that all the facts and circumstances, especially the tremendous damage to the train and the heavy steel bridge proclaim that the cars jumped the track on account of the highly dangerous speed of the train when it struck the curve. We believe plaintiff’s theory of the cause of the wreck is just as reasonable as that of defendant and is supported by substantial evidence. Indeed, were we sitting as triers of fact, we would say plaintiff has the better of the con*
At the request of plaintiff, the court instructed the jury on the measure of damages that “in the event your finding is for the plaintiff, you will assess his damages as folloAvs: For loss by shrinkage in weight and value of said cattle, if any, caused by defendant’s failure to transport and deliver said cattle as agreed, in such sum as the evidence may shoAV he has sustained, not exceeding eight hundred and ninety-six dollars. And if you further believe from the evidence that the market price at Mansfield, Illinois, on such cattle as the cattle in question declined between the date advertised for the first sale and the date of the second sale, and that the delay in selling said cattle was caused by the negligence and failure of defendant to transport said cattle to Mansfield, Illinois, then you will assess plaintiff’s damages because of such decline in the market price of said cattle as the evidence may shoAV he has sustained not exceeding the sum of six hundred dollars. And if you further believe and find from the evidence that the plaintiff suffered loss by reason of incurring expense on the 11th day of September, 1907, in driving said cattle to Versailles, in loading them into defendant’s cars, and in driving said cattle back to the farm after they were returned to Versailles by defendant you will assess his damages at such sum as the
The objections to this instruction rest on the postulate that “this is not a case of delayed shipment, but a case where there was an attempt at transportation which entirely failed,” and the rule of damages is invoked .that applies in cases where the carrier refuses an offered shipment. As we intimated earlier in the opinion, we think this case is to he treated as one of negligent delay. Disabled by its own fault from performing its duty of carrier, defendant forced plaintiff to employ another agency to take his cattle to their destination and, since he acted with reasonable care and expedition (and of this there can be no doubt), defendant should reimburse him- his actual loss which consisted of the loss of weight caused by defendant’s wrong, of the loss from the decline of the market and of the additional expense incurred on account of the reshipment. The court gave the jury the correct rule. [Sloop v. Railroad, 93 Mo. App. 605; Gann v. Railroad, 72 Mo. App. 34; Wilson v. Railroad, 66 Mo. App. 388; Bank v. Railroad, 119 Mo. App. 10; Perry v. Railroad, 89 Mo. App. 49; Wilson v. Railroad, 129 Mo. App. 347.]
The second instruction given at the request of plaintiff is attacked on the ground that it required of defendant unqualified proof that the wreck was unavoidable. The instruction says that “it devolved upon the defendant to show . . . that said wreck was unavoidable and occurred without any negligence on the part of the defendant.”
A reasonable construction of this language satisfies the rule that defendant was required only to show that the wreck was unavoidable by the exercise of reasonable care.
An examination of other points made by defendants discloses that the case was tried without substantial error.