63 Mo. App. 671 | Mo. Ct. App. | 1895
This action was brought to recover the damages done certain cattle which the plaintiffs, in. December, 1894, shipped over the defendant’s road,, from Greentop, a small station in Schuyler county, to-Miami, a station on defendant’s Moberly and Kansas, city line. The negligence charged was that defendant, failed to furnish a suitable ear for the transportation of' the cattle, — that they were loaded into an inclosed box car and carried to Kirksville and during the transit, were distressed and damaged for want of air and. ventilation. The evidence quite conclusively shows, that the ear was not suited for the purpose of safely transporting the cattle, and there was abundant testimony tending to prove injury to the stock by reason of using the car. The defense, however, most relied on, was that the plaintiffs chose the particular car and were themselves responsible for the damages resulting from its use.
In order to understand the nature of the controversy, and fix the blame where it belongs, it is necessary
Accordingly, the conductor of .the north-bound train was directed- to leave three empty stock cars at Kirksville, making seven in all at that place, thus filling the order there, and to take the remaining empty stock car in his train to Greentop; and this, with the one to be brought down by the Ottumwa train, would fill the order at Greentop. In the meantime, however, before the train dispatcher could arrange these changes, on account of the shortness of time, the empty stock car at Queen City was taken by another shipper and loaded with stock consigned to St. Louis. So, then, notwithstanding the diligent efforts of the train dispatcher, there was provided at Greentop only one- stock ear, whereas two were needed. The south-bound train had in it that day a new empty box car, not owned by the defendant, thirty-four feet in length, or four feet longer than the stock cars ordered. The situation was fully explained to Hoops, the agent of plaintiffs, who was
Plaintiffs had judgment below and defendant appealed.
In the foregoing statement we have omitted any reference to the court’s instructions, as well as any reference to the bills of lading, concerning which points are made in the briefs. A discussion of these becomes unnecessary in view of our conclusion that under the uncontradicted facts of the case, the plaintiffs should not recover. After a thorough consideration of all the evidence, we fail to see wherein the defendant, or its agents, were at fault, or how they can justly be charged with negligence in the matter. We discover no just cause to hold it responsible for damages which the plaintiffs brought on themselves by their own conduct and that of Hoops, their agent in charge of the cattle at Greentop station.
We look at this as’praetically one transaction — one shipment. On the Saturday evening (December 8), plaintiffs requested defendant’s agents at Greentop and Kirksville to get ready for their use the next day, eight cars suitable for carrying stock — two of these to be furnished at Greentop and the other six at Kirksville. This number of cars was not then at these stations, nor was this to be expected. Railroad companies are only
Plaintiffs’ loss here comes properly under the title of “loss or injury by the act or fault of the consignor of the goods;” wherein it is said that, “whenever the consignor or customer has, under a contract of carriage by himself, or his servants, willfully, fraudulently, or in negligent disregard of his duty as bailor, occasioned the loss complained of, the carrier may set this up for his own special justification.” Schouler’s Bailments & Carriers [2 Ed.], 421.
Even after the emergency arose — I mean after the shortage of a car had been brought about at Greentop, and caused, too, by plaintiffs’ own act — these plaintiffs had clearly the option to wait, till next day and secure a suitable stock car, or to take the risk of using the box car then in the.train going south. Under the circumstances, their agent thought proper to take the chances of using the box car, and manifestly the plaintiffs must abide the result of that unfortunate choice. No such choice was given in the case of Potts v. Railroad, 17 Mo. App. 364. The plaintiff there used the car especially provided for him. The facts of the case at bar are quite different from those of the Potts case.
The judgment will be reversed.