Lackland v. Chicago & Alton Railway Co.

101 Mo. App. 420 | Mo. Ct. App. | 1903

REYBURN, J.

-The principal contentions on behalf of appellant are, that the legal duty resting upon defendant extended no farther than to provide pens or yards for the purpose of holding the stock, and preventing escape pending shipment preparatory to loading for transportation, and that it was under no obligation to furnish shade and shelter or otherwise protect or care for the stock while in the yards awaiting shipment. It was as much the duty of the defendant to establish and maintain a safe receptacle for the receipt'and preservation of live stock awaiting shipment on defendant’s railroad, as it was to construct and maintain a secure depot for inanimate freight, and to provide and furnish safe cars for the transportation of both.

A railroad does not transport live stock with the same measure of responsibility which attends the carriage of goods, but there are well recognized limitations of its liability arising from the nature of animate freight. The difference in liability grows out of the inherent dangers from the nature of such subject of carriage. Common carriers are insurers of inanimate freight against all loss or damage, except such as are unavoidable or caused by public enemies, but there is no warranty on the carrier for injuries to living freight consequent upon its own vitality, and such carrier is exonerated from liability for injuries to the latter, if he can establish that he has provided all suitable means of transportation and exercised that degree of care which the nature of the property required. Hutchinson, Carriers (2 Ed.), sec. 217.

A railroad corporation, holding itself out to- the public as a carrier of live stock, from the character of such business must provide and maintain suitable facilities for receiving live stock offered for shipment over its road. “When animals are offered to a carrier of live stock to be transported, it is its duty to receive them; and that duty can not be efficiently discharged, at least in a town or city, without the aid of yards in which the stock offered for shipment can be received and handled with safety.” Covington, etc., v. Keith, 139 U. S. 128; also, Cooke v. Railroad, 57 Mo. 471; Mason v. Railroad, 25 Mo. App. 473; Kincaid v. Railroad, 62 Mo. App. 365; Hutchinson, Carriers, 322, 322a, 322b.

A high range of temperature, especially during midday, at the season of the year in question, in the latitude of Audrain county, could not be accounted extraordinary, or- not to be looked for, and whether such character of live stock could be safely kept awaiting shipment during the month of June in pens under the conditions shown by the evidence, was at most, a question for the jury. Pruitt v. Railroad, 62 Mo. 527.

2. Appellant further urges that plaintiff was chargeable with the consequences of the facts known to him of the weather conditions obtaining and the absence of shade, shelter and water in the pens. When a railroad has invited and obtained the shipper’s business by holding itself out as a common carrier of live stock, it is presumed to have safe means of handling the stock it has accepted and engaged to transport, and it can not be heard to say that in adopting the means offered the shipper was negligent. As has been, frequently said, the shipper and the carrier are not on even terms, the former not being in a situation to refuse to ship, and unless the mediums of shipment employed are so obviously dangerous as to make it reasonably certain that injury must inevitably result, the shipper, should not be held guilty of contributory negligence in accepting the means tendered. Kincaid v. Railroad, 62 Mo. App. 365; Paddock v. Railroad, 60 Mo. App. 328; Mason v. Railroad, 25 Mo. App. 475.

3. Appellant further objected that its liability had not attached, as there had been no delivery of the property. The receipt of the stock in the pens of defendant imposed an obligation upon it to forward them, and being placed at the nsual place of receiving snch freight for shipment as directed by the representative of defendant under the circumstances herein detailed, the delivery was complete and the liability of defendant as a carrier attached therefrom. Hutchinson, Carriers (2 Ed.), sec. 89; Mason v. Railroad, supra.

4. Complaint is also made that the court did not instruct the jury as to what constituted delivery but left it to the jury to determine whether the facts detailed in evidence established delivery. As has been frequently decided in the trial of a civil action, the court is not required to instruct the jury except as requested by the parties, and the defendant, if it desired the jury so enlightened, should have framed and requested an instruction appropriately defining the legal import and requirements of delivery. Construction Co. v. Railroad, 71 Mo. App. 626; Hall v. Jennings, 87 Mo. App. 635. “If parties wish instructions on any particular question, they should ask the court to give them. ’ ’ Coleman v. Drane, 116 Mo. 387, and eases cited.

5. Error is imputed in the form of the second instruction on plaintiff’s behalf, in that it required the jury to find for plaintiff, if the stock became overheated and died by reason of the pens not being reasonably safe, as stated in plaintiff’s petition, but this position is untenable and the objection without merit. The rule is well established that the jury should not be referred to the pleadings in a civil action, nor to the indictment in a criminal proceeding to ascertain the issues upon which they are to pass. State v. Scott, 109 Mo. 226; State v. David, 131 Mo. 380; Sherwood v. Railroad, 132 Mo. 339; Britton v. St. Louis, 120 Mo. 437; Hartpence v. Rogers, 143 Mo. l. c. 633. But the other instructions given fully define the issues presented to the jury, and tbe words criticised by defendant could have been entirely omitted without impairing the instruction. It is impossible to conceive how the jury could have been misled or the rights of the defendant prejudiced by the use of the words complained of.

It is insisted,.finally, that it was the duty of plaintiff to have avoided the injury, if possible by reasonable effort, which could have been accomplished at a small outlay by appellant’s application in the first instance of the means of relief effectually resorted to in saving the larger number of the animals when their dangerous condition was reported to respondent. The rule of avoidable consequences is a rule of limitation of the plaintiff’s recovery, and does not arise until damages have been produced or are in course, which create or will create a cause of action. Sedgwick, Damages (8 Ed.), vol. 1, sec. 204. If respondent had not restricted the damages accruing by relieving the distress of the animals when apprised of the situation, this doctrine might not lack application, but under the undisputed facts herein presented the rule is not appropriate.

Discovering no reversible error in the record, the judgment will be affirmed.

Bland, P. J., and Goode, J., concur.