Prince & Co. v. St. Louis Cotton Compress Co., 112 Mo. App. 49

Prince & Co. v. St. Louis Cotton Compress Co.

112 Mo. App. 49

| Mo. Ct. App. | 1905

BLAND, P. J.

(after stating tbe facts). — 1. Tbe defendant contends that tbe plaintiff should have been nonsuited, for tbe reason tbe damage to bis cotton was caused by an extraordinary flood, over which tbe defendant bad no control, and that defendant’s negligence, if *64it was negligence,was not shown to have co-operated with the act of God to produce the injury. If we correctly understand this contention, it is that defendant is not liable unless it had something to do with the construction of the Oonlogue dike or some duty to perform in respect to keeping it in repair, or was required to build it to a greater height for the purpose of protecting its warehouse, and neglected to perform this duty. Suppose A should erect his warehouse in such close proximity to a railroad track (not used or expected to be used for trains to travel on) that a train of cars running on the track would strike and demolish it, and should receive and store the goods of B in this warehouse, and afterwards be notified, in time to move the goods, that a train of cars was approaching and would run over the track and, after receiving the notice, make no effort to remove the goods, and the train should come along and strike his warehouse and damage B’s goods, could he answer a claim of B for damage to his goods, that he had no control over the train that struck his warehouse and was therefore not liable? The question furnishes its answer. By parity of reasoning, if the defendant received warning and knew, as its officers testified they did know, that the danger of its warehouse being flooded from the waters of the river was hourly increasing and that the dike was liable to break or be overflowed atanyhour, can it be said that it was not negligent, if it failed to make every reasonable effort in its power to remove the cotton its consignors had entrusted to its care, from the threatened danger to a place of sefety? The defendant was powerless to stop the rise in the river and it was under no legal duty to improve the dike to prevent its breach or overflow by the waters of the river. But it did owe the duty to its customers to exercise ordinary care and diligence to remove their cotton to a place of safety after it saw that the same was likely to be submerged, and we think the court properly refused to nonsuit the plaintiff.

*65The cases of Davis v. Railroad, 89 Mo. 340, 1 S. W. 327; Turner v. Harr, 114 Mo. 335, 21 S. W. 737; Coleman v. Railroad, 36 Mo. App. 476; Green v. Ins. Co., 69 Mo. App. 429, and American Brewing Ass’n v. Talbot, 141 Mo. 674, 42 S. W. 679, cited and relied on by the defendant, are not in point, for the reason the facts in each of them are radically different from the facts developed on the trial of this case. The controlling question in'the case is, not whether or not defendant could have controlled the flood, or whether or not its negligence contributed to the crevice in the dike, but whether or not being forewarned that the stage of the water in the river would be so high as to overflow or breach the dike arid flood its warehouse and damage the cotton stored therein, it exercised ordinary prudence and diligence to remove the cotton from the threatened danger tó a place of safety. We think there was sufficient evidence to warrant the court in submitting this issue to the jury and that in no view of the case would the trial court have been justified in withdrawing the case from the jury.

2. Defendant contends that the court erred in admitting the testimony of Mr. Prince, that he demanded the cotton on the thirtieth of June and that it could have been delivered to him on that day, but he did not know on what day cars could have been gotten to the ware-' house to haul it away, and erred in selecting June thirtieth as the date on which the market value of the cotton should be estimated. Its contention is that as the' cotton was submerged on June seventh, that date should have been taken as the date when the damage was done and when defendant’s negligence, if it was negligence, produced its inability to deliver the cotton. The market value of cotton, according to some of the evidence, was a fraction of a cent higher on June thirtieth than on June seventh, and for this reason defendant’s contention demands consideration. If plaintiff had demanded-its cotton on June seventh, defendant could not have de*66livered it and its failure to deliver might have been treated by plaintiff as a conversion of the cotton and defendant been held liable for its full value on that day, provided. it could not have shown its failure to make delivery was caused by the act of God. But no such demand was made, and it appears to us that the true measure of the damage is as the learned trial court instructed, that is, the market value of the cotton on the day the demand of delivery was made, less the sum realized on a fair salé of the cotton in its damaged condition, plus a reasonable expenditure for preparing it for market.

3. The defendant asked and the court refused the following instruction:

“The court instructs the jury that the burden of proof in this case is upon the plaintiff, and that in order to recover from defendant for the damages to plaintiff’s cotton, while stored in defendant’s warehouse, the plaintiff must prove that the defendant company in caring for the cotton of plaintiff was negligent and did not exercise ordinary care as defined in these instructions; and the plaintiff must also prove, in order to recover, that the loss or damage sustained by him-would not have occurred had the defendant exercised ordinary care.”

“The burden of proof” is a technical legal phrase and means that the burden is coextensive with the legal proposition sought to be proved and applies to every fact which is essential to or necessarily involved in the proposition (Wilder v. Cowles, 100 Mass. 187), or as said in Siefke v. Siefke, 3 Misc. Rep. 81, citing People v. McCann, 16 N. Y. 58, it means, “An obligation imposed on the party who alleges the existence of the fact or thing necessary in the prosecution or defense of an action to establish it by proof.” It could not be expected that the jury would correctly interpret the phrase. See Clarke v. Kitchen, 52 Mo. l. c., 317 where Sherwood, J., speaking of the words “preponderance of evidence,” said: “The words, preponderance of evidence,’ are with the average juror sus*67ceptible of, and very likely to receive, almost an infinity of construction.” The same criticism justly applies to the words, “the burden of proof.” Conceding then tbe burden of proof was on tbe plaintiff, it was, for tbe reason stated, not error to refuse tbe instruction in tbe form it was presented.

4. Tbe defendant asked seven other instructions, which tbe court refused. We have examined them all with care and find that such of them as announce correct propositions of law are supplied by instructions given. We tbink tbe instructions given fairly and fully declare tbe whole law of tbe case to tbe jury, and while tbe case is a close one on tbe evidence and a bard one on tbe defendant, we tbink tbe plaintiff made out a prima facie case and that there are no just grounds to warrant us in disturbing tbe verdict.

Tbe judgment is affirmed.

All concur.