126 Mo. App. 532 | Mo. Ct. App. | 1907
Action to recover damages alleged to have been caused by the negligent delay of defendant, a common carrier, in the transportation of a car of eggs shipped by plaintiffs from Ash Grove, Missouri, to Chicago. The answer, in addition to a general denial, contains an averment that the injury to the property was the direct result of an act of God. At the close of the evidence, defendant’s request for a peremptory instruction was refused and the case was submitted to the jury on the theory that the evidence afforded room for a reasonable difference of opinion on the issue of the proximate cause of the injury. That issue was resolved in favor of plaintiffs who recovered judgment from which defendant prosecutes this appeal.
The evidence most favorable to plaintiffs tends to show that in the course of transportation the car arrived at Kansas City early in the morning of May 30, 1903, over defendant’s road, and should have been delivered to the connecting carrier during that day in time to depart on an evening train for Chicago, but that defendant neglected to make such delivery and early the next morning, a great flood inundated its yards in Kansas City, partly submerged the car and greatly damaged the eggs.
The facts before us are similar in essential particulars to those considered in the 'case of Moffatt Commission Co. v. Railroad, 113 Mo. App. 544, and for the reasons expressed in that case and in the later cases of Pinkerton v. Railroad, 117 Mo. App. 288, and, Lamar Mfg. Co. v. Railroad, 117 Mo. App. 453, we find no difficulty in reaching the conclusion that the negligence, if any, of defendant in delaying the car at Kansas City, was but a remote cause of the injury, the direct cause being the flood which appeared so suddenly and with such magnitude and force that its. advent could not be anticipated nor its consequences averted by the exercise of human care and foresight. Plaintiffs vainly
The principles applicable to the present situation have been so fully discussed in the cases to which we have referred and in other recent cases (Grier v. Railway, 108 Mo. App. 565; Rodgers v. Railroad, 88 Pac. 885; Cattle Co. v. Railroad, 135 Fed. 135; 147 Fed. 457), that we deem it unnecessary to give them an extended discussion here. There was no issue of fact to submit to the jury, and the learned trial judge erred in not sustaining the demurrer to the evidence.
It further appears from the evidence that while the flood was at its height, one of the plaintiffs came to Kansas City and took' charge of the eggs under an agreement with defendant’s agent to handle them for
We do not agree with the argument of plaintiffs that the authority thus given by defendant’s agent to plaintiffs affected the rights of the parties by serving to create a liability on the part of defendant to make good the loss suffered. It was the duty of defendant to do all in its power to minimize the loss. The property being of a highly perishable nature, already damaged, and in a situation where the car could not be moved for some time, the only thing that could be done to save anything out of it was that which was done. Defendant would have been justified in employing a stranger to the transaction to preserve and sell the eggs for its account, and there is no reason for holding it liable because it thus employed one of the plaintiffs instead of a stranger.
It follows that the judgment must be reversed.