1 S.W. 327 (Mo. 1886), Davis v. Wabash, St. L. & P. Ry. Co.

Citation:1 S.W. 327, 89 Mo. 340
Opinion Judge:Ray, J.
Party Name:Davis et al. v. The Wabash, St. Louis & Pacific Railway Company, Appellant
Attorney:H. S. Priest for appellant. Noble & Orrick for respondents.
Case Date:June 21, 1886
Court:Supreme Court of Missouri

Page 327

1 S.W. 327 (Mo. 1886)

89 Mo. 340

Davis et al.


The Wabash, St. Louis & Pacific Railway Company, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from St. Louis Court of Appeals.


H. S. Priest for appellant.

(1) There should have been no recovery in this case, for the following reasons: (a) The declaration is upon a contract, in which there is no privity shown between the plaintiffs and the defendant. Railroad v. Railroad, 30 Am. Rep. 23; S. C., 9 S.C. 325; Angell on Carriers, sec. 429; Weed v. Railroad, 19 Wend. 234; Schouler's Bailments, 572; School District, etc., v. Railroad, 102 Mass. 552; Bliss Code Pleading, sec. 234 et seq.; 2 Chitty Pleading [9 Am. Ed.] side p. 356, 355; Anchor Line v. Dater, 68 Ill. 369; Coxon v. Railroad, 5 Hurl. & N. 274; Gray v. Ottolengui, 12 Richardson (S. C.) 101; Winterbottom v. Wright, 10 Exch. Rep. 109; Gray v. Jackson, 51 N.H. 9; S. C., 12 Am. Rep. 1; Railroad v. Pratt, 22 Wall. 123; Railroad v. Myrick, 107 U.S. 102. (b) The proximate cause of the injury was the act of God, for which there can be no recovery. Flori v. City of St. Louis, 69 Mo. 341; Ellett v. Railroad, 76 Mo. 534; Wharton's Negligence, secs. 114, 558. (c) No negligent delay in forwarding the merchandise from Toledo, after it came into defendant's possession, was shown; but even conceding that such delay was proven, the injury which followed was in no wise naturally connected, as cause and effect, with that delay; it was not the natural or probable result, or such a result as the mind of an ordinarily prudent person would contemplate or foresee as a consequence; the injury was wrought by a casual or accidental cause; a remote and not a proximate consequence. Morrison v. Davis, 20 Pa. 171; Denny v. Railroad, 13 Gray, 481; Railroad v. Reeves, 10 Wall. 188; Francis v. Transfer Co., 5 Mo.App. 7; Schiffer v. Railroad, 105 U.S. 249; Clarke v. Railroad, 39 Mo. 184; Ballentine v. Railroad, 40 Mo. 491; Henry v. Railroad, 76 Mo. 288. (2) The case was put to the jury upon erroneous instructions, given at the request of plaintiffs. Instruction number one was abstract and misleading, as applied to the facts of this case. Flori v. City of St. Louis, 69 Mo. 341. (3) Instruction number two was likewise abstract and misleading, and also wanting in many cardinal elements, which in this case constitute a liability. (a) It placed an undue burden of proof on defendant. Thompson on Negligence, 1227, notes 2, 3 and 4; Graves v. Colwell, 90 Ill. 612. (b) It did not properly discriminate between the conclusions of law and inferences of fact which may be drawn from given facts, and was, therefore, misleading. State v. Laurie, 1 Mo.App. 376; Clarke v. Kitchen, 52 Mo. 317; Young v. Ridenbaugh, 67 Mo. 384; Insurance Co. v. Hogan, 80 Ill. 35. (c) In civil cases the law does not require a party "to establish" his case or defence by a clear or "fair" or any quality of preponderance of evidence. It is sufficient, if the evidence preponderate ever so slightly in his favor. Dyer v. Brannock, 3 Mo.App. 432; Ellis v. McPike, 50 Mo. 575; Clarke v. Kitchen, 52 Mo. 317; Ruff v. Jarnett, 94 Ill. 475; Stration v. Railroad, 95 Ill. 25; Bitter v. Saathoff, 98 Ill. 266. (d) It is not true that the law places the burden of proof on the carrier to show that the injury resulted from the act of God. If it appears in the evidence of plaintiffs that the injury resulted from an extraordinary flood, the burden remains on plaintiffs to show by a preponderance of evidence, that such flood was a remote rather than the proximate cause. Gillespie v. Railroad, 6 Mo.App. 558; Railroad v. Reeves, 10 Wall. 176; Transportation Co. v. Donner, 11 Wall. 129; Wilson v. Railroad, 13 Reporter, 302. (e) The evidence of plaintiffs shows that the goods were injured by a sudden, violent and extraordinary flood; in such case no inference of negligence can be drawn from the fact of loss, and the burden is on the plaintiffs to prove it. Wilson v. Railroad, 13 Reporter, 302; Transportation Co. v. Donner, 11 Wall. 129; Clarke v. Barnwell, 12 Howard, 272; Scott v. Dock Co., 3 H. & C. 596; Vail v. Railroad, 63 Mo. 220. (f) It is error to instruct the jury what any given evidence establishes, or to direct them to a consideration of a particular part of the evidence to the exclusion of others. The instruction does both. Koenig v. Life Association, 3 Mo.App. 596; Chappel v. Allen 38 Mo. 222; Raysdon v. Trumbo, 52 Mo. 38; Ellis v. McPike, 50 Mo. 575; Bank v. Currie, 44 Mo. 92; Bank v. Armstrong, 52 Mo. 73; Ogden v. Kirby, 79 Ill. 555. (g) It is further faulty in telling the jury that this presumption of misconduct "must be overcome by proof." Gillespie v. Railroad, supra. If there was any presumption arising at all, it was one of fact to be drawn, not by the court, but by the jury. Barton v. Railroad, 52 Mo. 259; Owens v. Railroad, 58 Mo. 393; Graves v. Colwell, 90 Ill. 612. (h) It assumes the existence of every fact necessary to give the plaintiffs a prima facie case. (i) It requires the defendant to "establish," i.e. to make clear, "to fix unalterably," its defence. The authorities heretofore cited show that no such rule applies in civil cases. (j) There is no averment in the petition that "the defendant unnecessarily exposed the goods of plaintiffs." Yet the jury are told the plaintiffs may recover if such was the case. The instruction must be confined to the specification of negligence in the petition. Givens v. VanStuddiford, 4 Mo.App. 499; Raysdon v. Trumbo, 52 Mo. 35; Budd v. Hoff heimer, 52 Mo. 297; Railroad v. Mock, 72 Ill. 141; Railroad v. Hughes, 69 Ill. 170. (4) By plaintiffs' fourth instruction the jury were told that it was defendant's duty, as soon as plaintiffs' goods were accessible after the flood, "to do all that was reasonably necessary to prevent any further damage to them by reason of having become wet, and any failure so to do renders defendant liable for damages occasioned by such failure." (a) There was no evidence on which to base this instruction, and it is, therefore, erroneous. (b) There was no duty resting on defendant to care for these goods "immediately," which would be in preference to other goods in its control in like condition. Steamboat Lynx v. King et al., 12 Mo. 272; Swetland v. Railroad, 102 Mass. 276; Hutchinson on Carriers, sec. 327. (c) The instruction made it the duty of defendant...

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