66 Mo. App. 486 | Mo. Ct. App. | 1896
This is the second time this cause has been before us. 48 Mo. App. 179. On the first trial the circuit court peremptorily instructed the jury to return a verdict for the defendant. We held that to be error, and reversed the judgment and remanded the cause. The leading or controlling facts, and the law applicable thereto, are fully stated in our former opinion, and we need only note in this opinion the difference, if any, in the evidence of the two trials, and determine whether the case has been retried according to our former rulings.
On the twenty-third day of May, 1889, the plaintiff delivered to the defendant at Montgomery City nineteen coops of chickens to be transferred to St. Louis. The plaintiff gave evidence tending to prove that the fowls were placed in good coops; that they were not overcrowded, and were in apparently good condition; that just before the arrival of the train upon which they were transported they were fed and watered, and that when they arrived at St. Louis, a distance of about sixty miles, over one hundred and fifty-six chickens, being more than one third of the whole number shipped, were found dead in the coops. The plaintiff also gave evidence tending to prove that such a rate of mortality — the distance of transportation being considered — was without parallel in the shipment of poultry, except in cases of wrecks.
Upon this evidence the defendant asked an instruction of nonsuit, which the court refused, to which an exception was saved. At the instance of the plaintiff the following instructions were given, to which the defendant also excepted:
“1. The court instructs the jury that, if they believe from the evidence in the case that the defendant, its agents, or employees, was guilty of any negligence in the transportation of the chickens described in plaintiff’s account and statement by failing or neglecting to exercise all reasonable diligence and care for the safety and preservation of said chickens, and that such negligence or carelessness, either in whole or in part, caused the death" of said chickens, then your verdict must be for the plaintiff.
“2. If the jury believe from the evidence in the case that the chickens were delivered to the defendant at Montgomery City, Missouri, and were shipped in an apparently good and healthy condition, properly cooped, and in suitable weather, on the twenty-third day of May, 1889, and that afterward, and on the morning of the day, the defendant delivered said chickens to plaintiff’s consignee in the city of St. Louis with more than one third of their number dead and destroyed, then the law presumes that the negligence of the defendant produced the death of said chickens, and that this presumption of law obtains until the defendant shows to the satisfaction of the jury by the preponderance of all the evi*489 ■dence in the case that its negligence did not produce the death of said chickens, and that, unless the defendant proves to the satisfaction of the jury by such preponderance of evidence that its negligence did not produce the death of said chickens, your verdict must be for the plaintiff, and that this burden of proof is on the defendant.
“3. The court instructs the jury that, if they believe from the evidence in the cause that the defendant was a carrier of goods for hire between Montgomery City and the city of St. Louis on the twenty-third day of May, 1889, and on the said day the plaintiff delivered to the defendant, to be carried by defendant for hire from Montgomery City to St. Louis, a lot of chickens as described in plaintiff’s petition, in apparently healthy condition, properly cooped, and paid defendant for carrying said chickens, and that an uncommon and extraordinary number of said chickens died before they were delivered to the consignee of plaintiff at St. Louis, and the value of same was wholly lost to plaintiff, then the jury will find a verdict for plaintiff, unless they find from the evidence that the death of said chickens was caused by events over which defendant had no control, and was not caused by want of proper care and attention on the part of defendant during the transportation, or while defendant had said chickens in his possession and under his control, and the burden of proving this rests on the defendant.
“By proper care and attention is meant such care and attention as a reasonably prudent person would exercise, with regard to such property, under circumstances similar to those surrounding defendant on the occasion referred to.”
The jury returned a verdict for the value of the chickens as shown by the evidence, and the defendant has appealed.
The defendant’s second and third instructions are