141 Mo. App. 199 | Mo. Ct. App. | 1910
This is an action for damages, by the shippers against the carrier, to grain, occasioned by failure; it is alleged, of the carrier to provide a proper car for its transportation.
The article was shelled corn and was shipped from Kansas City, Missouri, to Mobile Alabama, February 24, 1903. On the 19th day of said month plaintiffs purchased the com from the Ernst-Davis Grain Company which was then in a car numbered 49307, on the defendant’s track. It had come from a point in Kansas to Olathe by another carrier, where it was transferred to defendant’s railroad and from thence to Kansas City. Ernst-Davis Company directed defendant to deliver the ear to the plaintiffs for shipment, and at
According to their usual custom plaintiffs by their agent Danciger partly filled in a bill of lading showing tbe number of tbe car and its destination. A few days before tbe shipment and before J. H. Barr, defendant’s agent, signed tbe bill of lading, Danciger called at bis office and asked if tbe car would run through to Mobile. Barr told him that it would, and called bis attention to tbe fact that tbe corn was loaded in a stock car. Barr testified: That Danciger came to bis office and gave him tbe number of tbe car; that be called bis attention to the fact that tbe car was a stock car; that be seemed somewhat surprised, and wanted to know bow a car of bulk corn could be loaded in a stock car; and that be, Barr, told him that be presumed that tbe car was boxed up. Tbe bill of lading contained tbe following: “Owners risk of damage on account of being loaded in stock car.” When tbe corn arrived at its destination it was found to be damaged to tbe extent of $110. Tbe damage was attributed to tbe fact that tbe com was not sufficiently protected while in transit because a stock car was not sufficient for that purpose. Tbe consignee paid for tbe corn and plaintiffs seek, to recover as assignees.
Plaintiffs recovered judgment .and defendant appealed.
Tbe first question is one of liability. It is urged that the court should have directed a verdict of tbe jury for defendant on tbe case plaintiffs made out.
Tbe rule is stated thus: “It is tbe business of common carriers to have vehicles suitable for tbe transportation of tbe freight shipped, and they are responsible for losses occurring in consequence of defects in this regard.. But the carrier is tbe judge of tbe sufficiency of bis carriages in tbe first instance.” [Sloan v. Railroad, 58 Mo. 220.] “A contract though signed by tbe shipper, agreeing to release tbe carrier, will not exonerate him from resulting damages or from his implied duty to furnish suitable means to safely transact bis business. [Potts v. Railroad, 17 Mo. App. 394.] “A shipper who knowingly loads bis bogs into a car not provided with trapdoors, as tbe statute requires, is not estopped from complaining of injury resulting from tbe lack of sucb doors.” [Paddock v. Railroad, 60 Mo. App. 328.] Tbe defendant in that case sought to escape liability on tbe ground that plaintiff by bis contract as a consideration for reduced
“A carrier cannot exonerate himself from resulting damage by reason of a breach of bis implied duty to furnish suitable means to safely transact bis business ; and this, though tbe cars are seen by tbe shipper, who also attends bis stock. Tbe rule is applicable, in principle to stock pens provided by carriers for the receiving of live stock.” [Mason v. Railroad, 25 Mo. App. 473.]
Where a shipper examined tbe car in which bis bogs were loaded and recited in tbe bill of lading that he found it safe and suitable, tbe carrier was held liable for loss of bogs escaping from tbe car by reason of its defects. [Jones v. Railroad, 115 Mo. 232.]
A law writer says in reference to exceptions to tbe rule we have been discussing that; “Tbe rule bolding railroad carriers bound to furnish cars adapted to tbe goods they undertake to transport does not apply where tbe shipper with means and opportunities of knowledge voluntarily selects the car on which be desires bis property transported. Tbe carrier is not responsible in such case for damages resulting from tbe unsuitableness of tbe car.” [Elliot on Railroads, Vol. 1, sec. 1480.] And tbe law is similarly stated in Hutchinson on Carriers, Vol. 1, sec. 295. This statement of tbe law is not in tbe least in conflict with tbe boldr ing in Jones v. Railroad, supra, where tbe shipper inspected a car that bad defects which be did not discover. We may safely conclude, that bad be discovered tbe defects and with that knowledge without protest shipped bis stock therein the court would have held that be was estopped by bis acts from claiming loss
In a case where the shipper after due time for deliberation, elected to ship his live stock in a box car instead of a stock car, the carrier was held not to be liable for injury to his stock by reason of injury they suffered in consequence of not being - transported in a suitable conveyance. [Huston Bros. v. Railroad, 63 Mo. App. 671.]
Where the shipper knew of the defects of a box car in which his animal was shipped and attempted to rectify them, it is held that it was a question for the jury, where the animal was injured by such defects, to determine from the facts whether the shipper assumed the risks incident to the defects in question, and whether the carrier furnished a suitable car. [Coupland v. Railroad, 61 Conn. 531; 23 Atl. 870.]
In a case, where fruit was shipped in a refrigerator car without ventilation, which was. injured in transportation by heat for want of ventilation; and where before transportation the shipper kept the car ventilated by keeping side doors open, but they were so constructed that they could not be kept open for transit and were air tight when closed; and where the car was not designed to be ventilated it was held that the carrier was not liable. [Densmore Commission Co. v. Railroad, 101 Wis. 563; 77 N. W. 904.]
Where the consignor was authorized to select cars for transportation of its merchandise and where it made the. selection and damage resulted to the articles shipped by reason of the unsuitableness of the car, it is held that the carrier is not liable. [Frohlick Glass Co. v. Railroad, 138 Mich. 116; 101 N. W. 223.] It is clear from the authorities, and it could not well be otherwise, that when a shipper is afforded the opportunity to select