177 Mo. App. 269 | Mo. Ct. App. | 1914
Plaintiffs, who are partners doing business in Topeka, Kansas, sued to recover damages they allege they sustained in consequence of negligence of defendants in the transportation of a carload of fresh oysters from Fort Worth, Texas, to Topeka. '
Plaintiffs’ vendor shipped the oysters from Fort Worth to Kansas City, December 11, 1910, under standard form bill of lading issued by defendant Gfulf, Colorado & Santa Fe Railway Company. On arrival of the car at Kansas City the broker through whom plaintiff purchased the oysters received it and reconsigned it to plaintiffs at Topeka, under a standard form bill of lading issued by the defendant The Atchison, Topeka & Santa Fe Railway Company. There was no
In separate answers defendants pleaded special defenses based on allegations that the transportation from Fort Worth to Topeka was accomplished through the agency of successive but independent transactions between plaintiffs and defendants and that plaintiffs failed to comply with a provision in each bill of lading requiring notice of loss to be given in a specified time. The reply pleaded a waiver, of such notice. A trial resulted in a verdict and judgment for plaintiffs 'against both defendants.
It appears from the evidence that the transportation of fresh oysters a long distance requires careful packing and handling to keep them from spoiling. There is no complaint of any dereliction of defendants in the performance of the duties imposed on them as carriers and by the terms of the shipping contract, except in one particular. The initial carrier furnished a refrigerator car, properly filled its bunkers v/ith ice
The witnesses attribute this condition to a defect they discovered in the doors on one side of the car which prevented them from being tightly closed. As with a kitchen refrigerator it is necessary to exclude the outer air which if admitted would melt the ice too rapidly and the doors of refrigerator cars are made to fit so closely that when closed the car practically becomes air-tight.
The doors in question, so plaintiffs say, had warped or bulged in a way to prevent their proper union and to leave open cracks at their top and bottom through which the outer air gained access to the car and melted the ice packed around the containers. Employees of the Atchison road at Topeka who inspected the car deny the existence of such defect and
“The car was in first-class condition as far as I could see. I saw the doors closed on it and it was sealed in nay presence. Q. Was there any complaint made to you about the carload of oysters shipped from Fort Worth to W. R. Smith & Son about December 11, 1910, other than that they were short, which claim you say you would not allow? A. No. There was no complaint made to us of any character whatever, except the claim that the packages were short measure, which claim we would not allow and did not allow. Q. Was there any complaint made to you, or to the Texas Fish & Oyster Distributing Company, of which yo.u were the General Manager, about the quality or condition of the oysters. A. No. No complaint whatever. Q. In the suit filed by W. R. Smith & Son against the defendant Railway Companies, they set up the claim that the oysters arrived in bad condition. Do you know anything about that? Was there any report ever made to you by W. R. Smith & Son? A. The oysters could not have arrived in bad condition, for I had him to return one of the packages, when he claimed short measure, and this package I reshipped to a point in Texas, and they arrived at their destination in good condition, and we received our pay for same.”
The employee of plaintiffs who unloaded the car testified: “Q. How much ice was there around these containers? A. Do you mean the packages they was shipped in? Q. Yes, sir, boxes and barrels. A. They was anywhere from nothing to half full. Q. I will ask you whether or not that would have anything to do with the oysters remaining in good condition during shipment. A. Yes, sir. Q. What? A. They won’t keep without ice.”
The brief and argument of counsel for defendants is addressed entirely to the point that the court erred in overruling the separate demurrers to the evidence filed by the defendants. Counsel for plaintiffs have not favored us with either brief or argument. We dp not know whether to attribute this omission to overconfidence or despair, but in either case it would be without justification. It is not fair to the court and certainly is deficient in prudence for the successful party in the trial court to offer no opposition in the appellate court to the attacks of his adversary on the fruits of his victory and to attempt to force the court to take up the gage of battle for him. A party so inconsiderate and so negligent in the care of his own in
At the beginning of onr investigation of the questions argued by defendants in support of the demurrers to the evidence we find a pleaded cause founded not on the common law liability of a carrier as an insurer but on a specified act of negligence. In such case the plaintiff takes the burden and must carry it to the end of proving that his damages resulted from the alleged cause and from no other.
“The party who founds his cause of action upon negligence must be prepared to establish the assertion by proof. If the cause of action stands on negligence' of the carrier and not on the common law liability of the carrier as an insurer, the burden of proof is upon the plaintiff from the beginning to the end of the case.”, (Witting v. Railway Co., 101 Mo. l. c. 640; Bockserman v. Railway, 169 Mo. App. 168; Haase & Sons Co. v. Dispatch Co., 143 Mo. App. 42; Hamilton v. Railroad, 114 Mo. App. 504.) Under this rule the burden is on plaintiffs to show that their damages were caused by negligence of defendants in furnishing a defective car.
There is no proof direct or circumstantial that the initial carrier, The Gulf, Colorado & Santa Fe Railway Co., furnished a defective car at Fort Worth but to the contrary all the evidence, including that offered by plaintiffs, is to the effect that the car had been thoroughly inspected and was in perfect condition when it left Fort Worth. There is not the slightest evidence of any change in this condition during the transportation to Kansas City and as we view the evidence, and the law applicable to it, there is an entire failure of proof as against the first carrier whose responsibility ended with the delivery of the car to plaintiffs ’ broker at Kansas City. This was not a through shipment to Topeka but the transportation was divided
The evidence is uncontradicted that on receiving the car at Kansas City the Atchison Company inspected it and found it in good order and, as stated, there is no evidence that the alleged defect appeared before the beginning of the transportation from Kansas City to Topeka. In the absence of such proof plaintiffs have failed to sustain the charge of negligence against that company. Negligence is a breach of duty and on the hypothesis that the car left Kansas City in good order and became defective on the short journey to Topeka—a distance of not over seventy miles—it devolved on plaintiffs to show, first, that the carrier knew, or should have known, of the defect and failed to exercise proper care to discover it or to remedy it and, second, that a negligent breach of such duty was the proximate cause of the loss. (Goodrich v. Railway, 152 Mo. 222; Glasscock v. Dry Goods Co., 105 Mo. App. 657; Hester v. Packing Co., 84 Mo. App. 451; Kelley v. Railway, 105 Mo. App. 365.) The evidence of plaintiffs utterly fails in both of these particulars.
On the other hand the condition of the car at Topeka, as shown by uncontradicted evidence, strongly indicates that the injury to the oysters was due to negligent packing. There was no unusual diminution of the ice in the bunkers put in by the first carrier but there was much less packing around the containers than there should have been. Despite the assertion of the shipper that he properly packed the containers, the evidence of plaintiffs, especially in view of their assertions that the containers were not properly sealed, tends just as strongly to support the inference that negligence of the shipper in packing was the proximate cause of the injury as it does to sustain the charge of negligence in the petition. The rule is well settled in negligence law that a plaintiff cannot recover when his evidence goes no further than to show that his injury was the result of one of two or more equally reasonable causes for one or more of which the defendant would not be liable. (Haake v. Davis, 166 Mo. App. l. c. 253, and cases there cited.)
It follows that since there is a vital failure of proof as to either defendant the judgment must be reversed. It is so ordered.