9 Mo. App. 159 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is action against defendant, as a common carrier, for damages for delay in transporting freight. It is alleged in the petition that plaintiff owned and operated a railroad ■from East St. Louis to Indianapolis, connecting there with the Pan-Handle Road, which connected at Pittsburg with the Pennsylvania Central; that defendant owned and ran upon their road, in connection with the two other roads, freight cars for carrying freight between East St. Louis and Philadelphia, and was a common carrier for hire between the last-named cities ; that on July 20, 1877, at East St. Louis, plaintiff delivered to defendant one hundred and seventy-one sound cattle, worth $15,000, and in consideration of $1,300 agreed to be paid by plaintiff, defendant agreed to carry the same safely, and deliver them to plaintiff’s agent at Philadelphia, within a reasonable time ; that five days was a reasonable time, but that defendant so misbehaved and neglected its duty as carrier that they failed to deliver the same until seventeen days ; that if defendant had used, as it was bound, ordinary care and diligence in forwarding and carrying the cattle, they would have arrived on July 25th ; that, meanwhile, their market value had declined $20 per head ; that plaintiff was, consequently, put to great expense
Respondent introduced testimony tending to show that he shipped the cattle on July 20, 1877, on appellant’s road, of which the termini were East St. Louis and Indianapolis. On July 19(h appellant refused to take them, alleging that there was a strike, which would soon be over. Respondent-testified that appellant gave him through rates from East St. Louis to Philadelphia, and that he knew from this that appellant had connections with the Pennsylvania Central and Pan-Handle Roads. A bill of ladiug was delivered at the time of the shipment; this was attached to a draft by i'espondent, and forwarded to Philadelphia. There was testimony as to damages. There was no evidence that defendant was informed of the destination of the cattle, or knew to whom they were consigned, nor that plaintiff paid anything for the transportation of the stock, nor to whom he paid, or agreed to pay, the rate of transportation fixed. The evidence was that appellant’s cars did not run to Philadelphia;
At the close of plaintiff’s case, an instruction in the nature of a demurrer to the evidence was refused.
Defendant introduced evidence tending to show that it made every effort to forward the cattle from Indianapolis to Philadelphia, .and that it was impossible to send them east of Indianapolis before August 1st, on account of the strike and riot along the lines in Indiana, Ohio, and Pennsylvania. The.trouble b'egan in Pittsburg on July 19th, but was not believed to be very serious until late in the day on the 21st. On July 20th, no apprehension was felt in St. Louis of serious, long-continued interruption of traffic. The rioting began at Indianapolis on July 23d. Everything that was humanly possible seems to have been done, both in Pitts-burg and Indianapolis, to move the trains.
At the instance of plaintiff, the court instructed the jury :
1. That if they believe from the evidence that the defendant, on the twentieth day of July, 1877, received from the plaintiff, at East St. Louis, one hundred and seventy-one cattle, for the purpose of carrying and forwarding them from East St. Louis to Philadelphia; that it was the duty of the defendant to transport said cattle in the usual and ordinary time required by its trains, or those of its connecting lines, if it could be done by the exercise of ordinary care and dili
2. Though they may believe fronrthe evidence that defendant was prevented from carrying and forwarding the cattle to plaintiff’s consignee at Philadelphia within a reasonable time after the receipt of them by defendant, on account of the lawless violence of an armed mob that obstructed transportation along the line of the defendant and its connecting lines, yet they will find for the plaintiff if they believe that plaintiff sustained loss directly brought about by reason of the negligence and want of proper care and foresight of the defendant and its agents and servants.
3. If the jury believe from the evidence that defendant, or its agents or servants, knew of the existence of an armed mob at any point or points along its line of railroad, or that of its connecting lines, between East St. Louis and Philadelphia, and they had reason to believe that said armed mob would obstruct transportation along its line and its said connecting roads at the time or before it received plaintiff’s cattle, and that, notwithstanding said knowledge,it received plaintiff’s cattle for transportation to Philadelphia, and proceeded with them in the face of any impending danger, the defence that defendant was prevented from carrying and forwarding said cattle from East St. Louis to Philadelphia in the usual and ordinary time, on account of the acts and the existence of such armed mob, can be of no avail.
The court of its own motion gave the following instructions : —
1. If, in the light of all the instructions given them, the jury find for the plaintiff on the ground that there was an unreasonable delay in the transportation of plaintiff’s cattle, they will give him a verdict for such sum, not to exceed $4,900, as they may believe from the evidence he is entitled to, taking into consideration the difference between the
The jury, at the instance of appellant, were instructed as follows: —
1. If the jury believe from the evidence that on and after the twenty-first day of July, 1877, the railroad tracks, depots, and rolling-stock of the Pan-Handle and Pennsylvania Roads at Pittsburg were taken forcible possession of by bodies of armed men, outside of its own employees ; that said men were at that time burning and destroying the tracks and
2. If the jury believe from the evidence that the PanHandle Road and the Pennsylvania Road had sufficient men in their employ to handle and run its freight trains without interruption, had they not been prevented by the forcible interference of men who were not at that time in the employ of either of said roads, they will find for the defendant, even though they may also believe from the evidence that the bands of men who obstructed the roads and hindered the running of trains thereon were composed in part of those who had been discharged from the employment of said roads or either of them. ■
3. If the jury believe from the evidence that on and after the twenty-first day of July, 1877, the railroads leading east from Indianapolis were in the possession of bodies of armed men outside of their own empkyees ; that said bodies of men took'forcible possession of said roads and forcibly prevented the movement of freight trains over said roads ; and that defendant made all efforts in its power to forward the cattle sued for to Philadelphia, and did forward them as soon as possible after the companies operating said roads had regained possession and control of the same, then they, will find for the defendant, even though such bodies of men may have been composed in part of former employees of such roads or any of them.
4. The jury are instructed that defendant is liable only for the safe carriage of the cattle to Indianapolis, and their delivery there to the next carrier, unless plaintiff has shown an agreement on defendant’s part to carry them beyond that point. If, therefore, the jury believe from the evidence that defendant carried the cattle safely to Indianapolis, and there delivered them to the next railroad as soon as such railroad would receive them, they will find for the defendant, unless
Amongst other instructions asked by appellant and refused, were the following: —
1. If the jury believe from the evidence that the cattle were delivei*ed at Philadelphia at as early a day as was possible under all the circumstances in the case, they will find for the defendant.
2. Even though the jury should believe from the evidence that when defendant received the cattle at East St. Louis it knew that it would be impossible to get said cattle through to Philadelphia without delay, yet, if the jury further believe from the evidence that said cattle could not have been carried to Philadelphia by any other route any sooner than they were actually carried there, then defendant is not liable by reason of having taken said cattle with such knowledge.
3. The jury are instructed that even though they may believe from the evidence that at the time defendant received the cattle sued for, the agents of defendants knew that there was a strike on the Pan-Handle and Pennsylvania Roads, they were nevertheless bound to receive the cattle, and they are not liable in this action if they forwarded the cattle from Indianapolis as soon as any road running east from that place would receive them.
There was a verdict and judgment for plaintiff.
The rule very generally adopted in this country, and by the Supreme Court of the United States, is that in the absence of a special contract it is the duty of a carrier receiving goods destined to a point beyond his line, to carry safely to the end óf his line, and to deliver the goods to the next carrier on the route beyond. This is sometimes called the American, as distinguished from the English rule, which is, that the first carrier is liable as carrier, and is exclusively liable to the end of the route, though the goods are carried to their destination oyer connecting lines in which the first
In the present case no such facts appear ; the bill of lading was not in evidence, nor were its contents shown. What would have been evidence to support a verdict on the theory of responsibility as carrier to the end of the route, by virtue of special contract, we need not examine; as, though the petition alleges a liability as common carrier, the case does not seem to have been tried on that theory. We see no evidence in the case from which a fair inference of a conti’act to carry beyond Indianapolis can be drawn. The mere giving of a through rate to the shipper is not enough. Hoagland v. Railroad Co., 39 Mo. 451. As to the usages of the business of the carrier, plaintiff was familiar with them. He had been shipping cattle east over defendant’s road for five-years, and he had notice of the fact that the cars of defendant never ran through on other lines unless there was a special
The instructions which put the case to the jury on the theory that defendant proceeded with the goods in the face of an impending danger do not seem warranted by any evidence in the case. The goods were kept at Indianapolis until the danger was past, and moved from there as soon as they could be moved. On the 20th there was no obstruction of defendant’s line; on the 23d it seems for the first time to have become clear that the insurrection in Pittsburg ivas of so serious a character that goods could not be safely moved for some time. We see no evidence that defendant was guilty of any breach of its duty to plaintiff in accepting the goods for transport on the 20th. The goods could in no case have reached Pittsburg before the collision between the soldiers and the mob, and ihe burning of the tracks on the 23d. The cattle must have been delayed somewhere, and it does not appear why the delay might not as well be at the Indianapolis stock-yards as at East St. Louis. If defendant knew of the obstruction before receiving the cattle, and that the Pan-Handle Road could not receive them, then there might be a continuing liability as carrier until they were received by that road, according to the ruling of the Supreme Court of the United States in Railroad Company v. Manufacturing Company, supra. But neither the pleadings nor the instructions put the case upon the theory of a damage occurring in consequence of a failure to deliver to the next carrier at Indianapolis and an injury to the goods whilst in defendant’s hands awaiting delivery to the second carrier.
The judgment is reversed and the cause remanded.