62 Mo. App. 461 | Mo. Ct. App. | 1895
LThis is an action for damages to a lot of fat cattle shipped from Martinsburg, Missouri, to Chicago, Illinois. The petition alleges, in substance, that the cattle were delivered to the defendant at 12 p. m. on the eleventh day of June, 1892, at Martinsburg; that by proper diligence they should have arrived at Chicago at 5 o’clock on the morning of the thirteenth, but that on account of the negligence of the defendant they were delayed and did not reach St. Louis until 11 o’clock k. m. the next day, and that, by reason of this delay and the negligent running of the train, one steer was so severely injured that he died; that, instead of forwarding-the shipment through to Chicago, the defendant wrongfully and negligently unloaded the cattle in pens in East St. Louis, where they remained for two days; that they were reloaded at 3 o’clock p. m. on the fourteenth, and that, after detaining them on the sidetrack for three hours, they were started to Chicago, arriving there the following day at 11 o’clock A. m. It was claimed that by this unusual and unnecessary delay the cattle were overheated, bruised, wounded and reduced in weight and depreciated in value, and that an additional expense of $50 was incurred for feed of cattle and board of hands, all to plaintiff’s damage in the sum of $750.
The answer is a general denial, and it also sets forth that the cattle were shipped under a written contract, in which the plaintiff agreed to water and feed the stock at his own expense and risk, and to accept, as full compensation for any damages caused by delay, the amount expended by him in the purchase of food and water for the stock; that on the morning of the
The plaintiff filed a replication, putting in issue the new matter contained in the answer.
There was no dispute at the trial about the delay in the shipment. The evidence for the plaintiff tended to prove the allegations concerning the bad condition •of the cattle when they arrived at Chicago, and that it was attributable to the delay. The delay at Martins-burg was caused by the derailment of a train, the cause •or causes of which do not appear. As to the cause of the delay at the stock yards at East St. Louis, there was evidence tending to prove that, when cattle or other live stock are received for shipment to Chicago, it is the duty of the conductor of the train receiving them to immediately notify the defendant’s agent at St. Louis ■of the receipt of the stock and their destination, who in turn must notify the defendant’s agent in East St. Louis, whose duty it is to make arrangement for the ■continuation of the transportation. The conductor having in charge plaintiff’s stock performed his part of that duty, but for some reason the agent at St. Louis was not notified. The cattle arrived at East St. Louis •on Sunday, and, as no notice had been received by the local agent there, no arrangement had been made for further shipment; so there was nothing to do but to unload the stock. The proof was that the plaintiff paid $6 for feed at East St. Louis.
The defendant read in evidence the contract under which the cattle were shipped. Its execution was not ■denied. It recited that, in consideration of a reduced
All instructions asked by the plaintiff were refused, except the following, which the court gave, to wit: “The court instructs the jury that the contract read in evidence on the part of the defendant does not relieve the defendant from any loss or damage suffered by plaintiffs to their cattle while being carried by the defendant, which resulted from the negligence, misconduct or carelessness, of the defendant.”
The defendant asked one instruction, which the court gave, to wit: “The court instructs the jury that,
The applicatory law, as we gather it from the decisions in this state, is that a common carrier can not, by any contract, whether supported by an independent consideration or not, exempt himself wholly or partially from loss or damage caused to freight by his own negligence in whole or in part; but he may, by special contract, supported by an independent consideration, protect himself against certain perils of transportation, or may limit his liability in amount where his own negligence is not a cause or concurring cause of the loss. Again, the carrier and shipper may, by special contract, liquidate the carrier’s liability in advance in case of loss or damage to freight from any cause, and in such case the contract of liquidation fairly entered into will supply the consideration to support itself. But, in order that this rule may be invoked by the carrier when sued, it must distinctly appear that the damages were intended to be liquidated and were intended to cover all damages to which the carrier would be subject at common law in case of damage or loss, and the amount fixed must not be tantamount to an exemption from liability.
The evidence tended to prove, and the jury might have so found, that the delay was caused by the failure of the agent of the defendant at St. Louis to notify the agent at East St. Louis of the receipt of the cattle. Therefore, the limitation in the contract as to the common law liability of the defendant as a common
This court has held that such a contract, to be valid, must have been fairly entered into (Conover v. Pacific Express Company, 40 Mo. App. 31; Rogan v. Railroad, 51 Mo. App. 665) ; and the supreme court, in the case of McFadden v. Railroad, 92 Mo. 343, decided that such contracts “are to be tested by their fairness, justice, and reasonableness.” In the case of Harvey v. Railroad, 74 Mo. 538, Judge Hough, speaking for the court, said: “This court has repeatedly held that public policy will not permit a common carrier to contract for exemption from liability on account of the negligence of itself, or its servants.” We are of the opinion that the contract here can not stand the foregoing tests. As applied to the subject-matter, the attempted liquidation of the damages is unfair, unjust and unreasonable. The. damages caused by delay in such a shipment might reach several thousand dollars. In this case, according to the evidence for the plaintiffs, it did reach several hundred dollars. Under the terms of the contract and the instruction of the court, the liability of the defendant therefor was satisfied by a judgment for $6. This was equivalent to a total exemption, which no court has ever tolerated where the negligence of the carrier has intervened. We conclude that the instruction asked by the defendant ought to have been refused.
In view of a retrial we deem it proper to say that, under this record, there can be no recovery for the
The judgment of the circuit court will be reversed, and the cause remanded.