113 Mo. App. 544 | Mo. Ct. App. | 1905
— This action is to recover damages by reason of the negligence of defendant in delaying the delivery of two cars of wheat whereby they were destroyed by a flood of such unprecedented character as to be admitted to be an act of God. The judgment in the trial court was for the defendant.
It appears that two cars of wheat were shipped by different persons over defendant’s road to Kansas Oity, Missouri. That one car was consigned to' the Murphy Grain Company and the other to the Benton Grain Company. Each of these companies had samples of the grain on May 28,1903, at the board of trade. Plaintiff bought the wheat from these samples on that'day and ordered the grain companies to send the cars to the yards of the Hannibal and St. Joseph Railroad Company. It is a matter of dispute as to what time in the afternoon of the 28th the defendant got the order. It was the custom of the company, and perhaps the expectation of parties dealing with it, to “card” such cars for transfer next day, when the order was given before four o’clock the preceding afternoon. If the order was given after four o’clock it could not be carried out until the second day. The cars could have been transferred the next day (the 29th) after the order given at the board of trade, but on the next day (the 30th) the great flood of 1903, caused by the overflow of the Missouri and Kansas rivers, suddenly advanced to such unprecedented stage as to make it impossible to move the cars, and it finally reached such height as to practically destroy the grain. Plaintiff does not claim that the cars could have been moved on or after the 30th, but bases its right to recover solely on the charge that defendant was negligent in not transferring them on the 29th.
1. In view of our conclusions as to the law of the case, we will assume that defendant got the order to/ transfer the cars from its track to the yards of the Han
It is generally stated to be the rule of law, and it is so held in this state, that where there is negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the person guilty of the negligence would be liable. [Davis v. Railway, 89 Mo. 340; Pruitt v. Railway Co., 62 Mo. 540; Coleman v. Railway Co., 36 Mo. App. 476.] But the injury must not be too remote. It must be a natural and probable consequence of the negligence. That is to say, the injury must have some natural connection with the negligence in the probable course of affairs. [Holwerson v. Railway, 157 Mo. 231; Am. Brewing Co. v. Talbot, 141 Mo. 674.] If the injury, as a consequence of the negligence, is beyond the usual experience and expectation of mankind, there ought not to be a liability. It would not be improper to ask the question: What are the probable consequences which might happen from the neglect? not what are the possible consequences. [Stone v. Railway Co., 171 Mass. 536.] In Scheffer v. Railway, 105 U. S. 249, Scheffer was injured through the negligence of the railway company, so that he became insane and committed suicide. It was held that the death in that manner was not the natural and probable consequence of the negligence and could not reasonably have been foreseen or expected.
It mightbenegligencetodelayputting certain goods under shelter in the month of July to protect them from rain or thieves; but if left out and the unheard of occurrence (in this climate) of a freeze at that season was to occur and destroy them, could there be any natural connection between the neglect and the loss? And so it has been held in this State that where the carrier negligently
So, the rule may be stated to be this: the act of God must be the sole cause of the loss or injury; and whenever the negligence of the carrier mingles with the act of God as a co-operative cause, he is liable:' provided, the resulting loss is within the probable consequences of the negligent act; otherwise, it will be too remote and disconnected to be considered the proximate cause. As
2. So, if we should regard the case as one arising from a breach of the contract to transfer the freight from one yard to another for delivery to the assignee of the consignee, the result Avould be the same. The consequences of a breach of contract must be such as were, or should have been, in the contemplation of the parties as a probable result of the breach. [Hyatt v. Railway, 19 Mo. App. 287, 300; Pruitt v. Railway, 62 Mo. 527; Mendock Railway, 133 Mass. 15; Walsh v. Railway, 42 Wis. 34; Hobbs v. Railway, 10 Law Rep. (Q. B.) 111.] In the last 'case it is said:
“What infinite difficulty there would be in attempting to lay down any principle or rule which shall cover all such cases; but I think that the nearest approach to anything like a fixed rule ,is this: that to entitle a person to damages by reason of a breach of contract, the injury for which compensation is asked should be one that may be fairly taken to have been contemplated by the parties as the probable result of the breach of the contract. Therefore, you must have something immediately flowing out of the breach of contract complained of,*550 something immediately connected with it, and not merely connected with it through a series of causes intervening between the immediate consequence of the breach of contract and the damage or injury complained of.”
in the same case expressed his view in the same way: “I concur in the observations which have been made by my lord and my learned brothers; and I would only add, without expressing anything in the form of a rule, that, in case of breach of contract, the party breaking the contract must be held liable for the proximate and probable consequences of such breach, that is, such as might have been fairly in the contemplation of the parties at the time the contract was entered into.”
Since the foregoing was written, an opinion by Judge Goode in the case of Grier v. Railway, 108 Mo. App. 565, hag been reported, in which we find support for what we have said in the first division herein.
Approving the view taken by the trial court, we affirm the judgment.