10 Mo. App. 134 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is an action against the defendant, an unincorporated association of railroad companies, operating connecting lines between New York and St. Louis, for damages resulting to the plaintiff by reason of the failure of the defendant to deliver to the next carrier for shipment beyond the defendant’s route, merchandise belonging to the plaintiff.
The petition alleges that “the defendant was, at all the times mentioned, a common carrier ; that on February 28, 1877, for value received, it agreed to carry from the city of New York to the city of St. Louis one case of merchandise, and at said city of St. Louis to deliver the same to the St. Louis, Iron Mountain, and Southern Railroad Company, and that the ultimate destination of said case was Pine Bluff, Arkansas, of which fact the defendant had full knowledge ; that the defendant did transport said case to St. Louis, but that it failed to deliver it to the St. Louis, Iron Mountain, and Southern Railroad Company, as it had agreed to do ; and failed to notify the plaintiff of its said failure to deliver said merchandise to said last-named road; and failed to inform the plaintiff of the whereabouts of said merchandise ; and the plaintiff claims damages in the sum of $650, by reason of the negligence of the defendant in failing to deliver and to notify,” etc. To this a general denial was filed.
The evidence tends to show that on February 28, 1877, Seidenbach, Schwab & Co. delivered to the defendant at New York City, a case of clothing for spring wear, of the value of $994, belonging to the plaintiff, marked “ M. Lesinsky, Pine Bluff, Ark., care of St. L., I. M. R. R.” for which the defendant gave a bill of lading reciting the marks on the goods, and stating that they were to be forwarded to St. Louis at a rate named; that the goods arrived at St. Louis on March 13, 1877, and were tendered by the St. Louis Transfer Company, one of the connecting companies of the defendant’s line, to the St. Louis and Iron Mountain Railroad, which road refused to
The plaintiff undertook to show that neither he nor the consignors had any knowledge of the existence of the rule under which the Iron Mountain Road declined to receive the goods ; that the defendant, its officers and agents, when it
' It seems to us that this is one of those cases where it is only necessary to state the facts in order to decide the case. By accepting the plaintiff’s goods, directed to a point beyond the termination of its own line, and consigned to the care of a carrier whose line connected with its line, the defendant assumed the duty of delivering them to such connecting carrier. Rawson v. Holland, 59 N. Y. 611. Delivery to the connecting carrier in this case being impossible by reason of. the fact that such carrier refused to receive the goods, did the defendant incur liability to the plaintiff for failing to give notice of that fact?
It is familiar law that the liability of a carrier does not cease till he has delivered the goods to the consignee, or made a reasonable attempt to deliver them.
Where his own route extends to the place of ultimate destination of the goods, and the consignee refuses to re
In all of these cases the carrier is bound to do what, under the circumstances, is reasonable. Hudson v. Baxendale, 2 Hurl. & N. 575. Where, as in this case, the goods have passed out of the hands and out of the sight both of the consignor and the consignee, and are interrupted in their transit by a circumstance unknown to either, but known to the carrier, it cannot for a moment be argued that the carrier does what is reasonable by housing the goods, giving notice to no one, and losing all knowledge of
We see no merit in the defendant’s contention that by his act of receiving the goods short of their destination, the plaintiff has precluded himself from recovery in this suit. We regard the case as governed in all respects by the doctrine announced by the Supreme Court in Atkisson v. Steamboat, 28 Mo. 125, that “ if goods are shipped on a voyage, and the owner agrees to receive them at a place short of the point of destination, that will not free the carrier from responsibility of damage incurred by a breach of the contract of affreightment made by him before the delivery of the goods at the intermediate place the principle being that ‘ ‘ an acceptance of the goods by the owner, after they have received damage in consequence of the carrier’s negligence, is no bar to an action for such damage.” Ang. on Car., sect. 338; Bowman v. Teall, 23 Wend. 308. That is just this case, for there can be no distinction upon principle between damage to the actual fabric of the goods
We, therefore, hold that the court erred in refusing to permit the plaintiff: to prove that when the Iron Mountain Eailroad declined to receive the goods no notice of that fact was sent by the defendant, or anyone else, either to the consignor or the consignee. We also hold that the court erred in refusing to permit the plaintiff to prove that the rule under which the Iron Mountain Eailroad refused to receive the goods was revoked six days after the goods arrived in St. Louis; that the defendant knew of such revocation ; that after such revocation the Iron Mountain Eailroad would have received the goods and carried them to their destination if they had been again tendered, and that the defendant did not again offer to deliver them to the Iron Mountain Eailroad at any time after the rule was revoked. We also hold that the court erred in instructing the jury that'if they should find that the defendant tendered the goods to the-Iron Mountain Eailroad when they arrived in St. Louis, they should find for the defendant. On the other hand, the plaintiff should have been permitted to introduce the evidence which the court excluded, as just stated; and upon this evidence, if introduced, the jury should have been directed, as matter of law, that the defendant was bound to notify either the consignor or the consignee of the refusal of the Iron Mountain Eailroad to receive the goods. They should also be directed to say whether the defendant acted reasonably under the circumstances, in failing again to tender the goods to the Iron Mountain Eailroad as soon as it had knowledge that the rule under which that road had refused to receive the goods had been revoked; and that if, in this particular, they should find that it acted unreasonably or negligently, the plaintiff would be entitled to damages.
The judgment is reversed and the cause remanded,