48 Mo. App. 179 | Mo. Ct. App. | 1892
The plaintiff is a shipper oi poultry, and. the defendant a common carrier. On the twenty-third of May, 1889, the plaintiff delivered to the defendant at Montgomery City, Missouri, nineteen coops containing live poultry for transportation to St. Louis, Missouri. The poultry was apparently in a healthy condition, and the coops were well filled but not overcrowded. The weather was fair, and cool. The coops, when the shipment arrived in the city of St. Louis, were found stowed away in the center of the car three or four coops high, as is usual in such shipments. The express car was a large new car of an improved pattern, especially built for transporting this class of freight, with extra doors and windows to give sufficient ventilation, but there was no evidence showing the storage of the coops or ventilation of the car while in transit. Upon the arrival of the car in St. Louis a few hours afterwards, it was found that, out of the number shipped, one hundred and fifty-six chickens and two turkeys were dead. Those that survived were in good condition. The death rate was extraordinary. No external injury was shown on any of the poultry ; noi was the cause of their death shown. It appeared that they smelt bad. One of the witnesses testified that coops reasonably well filled and put up in an express car, unless there was something the matter with the chickens, would go through safely.
The foregoing facts appearing by the plaintiff’s evidence, the court at its close instructed the jury to' find for the defendant, which they did. The plaintiff, appealing, assigns for error, that the proof made out a prima facie case for him, and he should have been permitted to go to the jury thereon.
The question of burden of proof in determining the question of negligence, as far as it affects the liability, of the carrier in the transportation of live freight, is one of some difficulty. In Clark v. Railroad, 14 N. Y. 573, Judge Denio thus states the proposition: “The
In Hussey v. The Saragossa, 3 Woods, 380, where a horse was delivered to the carrier in apparent good health and condition, and was delivered by him at the termination of the voyage in a dying condition, Wood, J., thus stated the- law: “When the carrier fails to deliver goods, or when he delivers goods in a damaged condition, the onus is cast upon him to show that he is not in fault. In other words, loss or injury
Both of these cases seem to have been decided upon a careful analysis of the law. They hold in substance that the transportation of live stock forms an exception only so far as the burden of proof is concerned. Where the injury is one to dead freight, the mere proof of receipt in good condition and delivery in a damaged condition fixes prima facie the carrier’s liability; but where it is live freight the shipper must, in the first instance go further, and must show an injury by human agency, causing, or concurring to cause, the loss or damage complained of. The risk resulting from disease or vice inherent in the animal is one which the shipper assumes, and not the carrier, to the same extent as if it were expressly excepted in the shipping contract.
While this is the law, it does not follow that such ‘injury must be shown by direct evidence to have resulted from the carrier’s negligence,.before the carrier is called upon to show due diligence. The case stands like any other case of exception; and proof of negligence may be made by circumstances. In case of
Applying the law as hereinabove stated to the facts disclosed by the record in this case, the following results follow: When the plaintiff gave vidence tending to show that the poultry was shipped in apparent good condition, properly • cooped, in suitable weather for such shipment, and that, after a comparatively short run, the carrier delivered the poultry to the consignee ■ with more than one-third of it dead, and that this death rate was so extraordinary that its parallel could not be shown, he certainly made out aprima facie case. Would he have rested there, it would have been incumbent upon the carrier to show that it used all proper care, which freight of that character required, in its transit between the place of receipt and the place of delivery.
It is true that the plaintiff went further, and also showed that the car in which the poultry was transported was a car of proper construction and approved pattern, and sufficiently provided with means of ventilation, and also showed that the poultry, when if arrived in St. Louis, was found properly stowed in the center <of the car. To that extent the plaintiff made out part of the defendant’s case showing absence of negligence in transportation. But there was no evidence
If, upon a retrial of the cause, it should satisfactorily appear that the carrier used due diligence in the stowage of the poultry and ventilation of the car, then the inference of negligence arising from the condition of the freight when delivered to the consignee would stand rebutted. But the plaintiff has the right to go to the jury even then, unless such facts appear by his own evidence. The judgment is reversed and the cause remanded.