165 Mo. App. 123 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiff on laecount of defendant’s negligence in maintaining its stock pen. Plaintiff recovered and defendant prosecutes the appeal.
It appears defendant maintains a stock pen for the accommodation of shippers at a siding or station on its railroad at Reading, about seven miles from Louis
On June 29, plaintiff telephoned defendant’s agent at Louisiana that he desired to ship a carload of hogs from Reading on the evening of the following day, and requested a car for that purpose. Defendant’s agent assured him that the car would be furnished in due time, and on the following morning plaintiff, together with others, drove the hogs about three miles from his home to Reading station. As the weather was warm, the hogs, eighty-two in number, were removed from plaintiff’s farm to defendant’s stock pen in the early part of the day. It appears that by 10:30 o’clock plaintiff had delivered all of the eighty-two hogs in good order and condition in defendant’s stock pen at Reading to await the arrival of the car in which they were to be loaded in the cool of the evening for the freight due there about 9 :00' p. m. After having placed the hogs in the stock pen, plaintiff returned to his home and telephoned defendant’s freight agent at Louisiana, Missouri that the hogs were delivered in the pen and to bill them out. In response to this message, defendant’s agent answered, “All right,” and took a memorandum over the telephone of the number of the hogs, their character, the consignee and their destination at East St. Louis. About the middle of the afternoon, thirty-four of the hogs were found dead from overheat, and another diéd soon after.
The petition charges that defendant so carelessly and negligently maintained its stock pen at Reading as to prevent ventilation and the circulation of air therein and that it is because of this negligence the .hogs came to their , death. It is averred that defendant negligently piled railroad ties along and adjacent
It is argued the judgment should be reversed because it is said the delivery of the hogs to defendant was not complete at the time they died. Touching this-argument, it may be said that defendant should be required to respond for the consequences of its, negligence in the circumstances of the case at any event; for, though the hogs were not delivered to defendant in the sense that it had ¡acknowledged receipt therefor by issuing a. bill of lading or had undertaken the task of loading them on the car, which more properly rested with plaintiff, the evidence is conclusive to the effect that its agent in charge invited plaintiff to place the hogs in the pen to await the arrival of the car which had been ordered the day before. No one can doubt that it is the duty of defendant, common carrier of live stock, to maintain yards or stock pens for the accommodation of those desiring to ship animals over its road. The duty to maintain such, stock pens includes, too, >an obligation which the law annexes that they shall be maintained rea
But aside from all of this, there is an abundance in the testimony of both plaintiff and defendant’s agent to constitute substantial evidence to the effect that the shipment of hogs had been actually received by defendant about 11:15 o ’clock in the forenoon. Touching this matter, plaintiff testified that he notified defendant’s agent through the telephone that he had delivered the hogs in defendant’s stock pen to await the arrival of the car; that defendant’s agent took the number and character of hogs, the name of the consignee and the place of destination and informed plaintiff he would bill them out accordingly. Defendant’s agent testified substantially the same as to this matter, but says he did not actually make out the billing until 5:00 o’clock in the afternoon. It is true plaintiff admits that he was to come later in the day, in accordance with the custom, and load the hogs into the car from 4he stock pen, but, be this as it may, enough appears to support the finding of the jury that an actual delivery had been made to defendant before the hogs died, for, though 'a delivery implies a change of possession from the shipper to the carrier and that the shipper has relinquished control of the property, for the time being, to the exclusive possession of the carrier, such may be found from the evidence here, notwithstanding the custom which required plaintiff to perform the physical act of loading the hogs on the car after it arrived. We say this on the evidence of plaintiff, that he noti
Touching the matter of plaintiff’s contributory negligence, if any, most assuredly it may not be declared as a matter of law on the proof here so as to entirely preclude his right of recovery. It may have been careless for him to corral eighty-two fat hogs in a dry pen on a heated June day without looking more closely to the matter of ventilation, but, unless the situation was so obviously dangerous that no reasonably prudent man would place that number of like hogs in the pen for the time being, plaintiff’s negligence is not to be declared as a matter of law. If the probable dangers because of the poor ventilation were matters about which fair minds might differ, the question was one for the jury and the court very properly so treated it in the instruction -given. [See Lackland v. C. & R. Co., 101 Mo. App. 420, 74 S. W. 505,]
But error intervened in the instructions for plaintiff by which the case was submitted to the jury. The petition charges several specific acts of negligence against defendant and plaintiff’s instructions submitted to the jury in most general terms the question of defendant’s liability, without regard whatever to the charges laid in the petition. The petition charges defendant’s stock pen was negligently and carelessly
Tor error in the instruction above pointed out, the' judgment should he reversed and the cause remanded. It is so ordered.