Connelly v. The Illinois Central Railway Company
| Decision Date | 20 October 1908 |
| Citation | 113 S.W. 233,133 Mo.App. 310 |
| Parties | CONNELLY, Appellant, v. THE ILLINOIS CENTRAL RAILROAD COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.
Reversed and remanded.
H. A Loevy for appellant.
(1) Instruction No. 3 for respondent is erroneous: (a) Because it assumes and takes it for granted or admitted by appellant that the Southern Railroad Company was in possession of the car between Winona and West Point, which is not the case. Cole v. Long, 1 Mo.App. 315; Dulaney v. Sugar Co., 42 Mo.App. 662; Chouquette v. Barada, 23 Mo. 331; Meritt v. Given, 34 Mo. 98; Turner v Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 453. Sawyer v. Railroad, 37 Mo. 240; Thompson v. Botts, 8 Mo. 710; Linn v. Bridge Co., 78 Mo.App. 117; Kuperschmid v. Railroad, 70 Mo.App. 438, 440; Smith v. Woodmen, 179 Mo. 129. (b) Because the law does not raise any such presumption as a presumption of law as that set forth in this instruction. (c) It is error to instruct juries concerning presumptions of law. Glover v. Duhle, 19 Mo. 226; Moies v. Eddy, 28 Mo. 382; Ham v. Barrett, 28 Mo. 389; Lynch v. Railroad Co., 112 Mo. 233; Erhart v. Dietrich, 118 Mo. 427, 430; Bluedorn v. Railroad, 121 Mo. 270, 271; Schepers v. Railroad, 126 Mo. 670; Morton v. Heidorn, 135 Mo. 616; Speer v. Burlingame, 61 Mo.App. 96. (d) Because such a declaration in an instruction is an abstract proposition of law and therefore decidedly improper and prejudicial. Campbell v. Transit Co., 121 Mo.App. 412; Albert v. Desel, 88 Mo. 150; Barton v. Odessa, 109 Mo.App. 76. (e) Because it singles out and gives special and undue prominence to a particular fact as decisive of the issues. Smith v. Woodmen, 179 Mo. 137; Ebhart v. Transit Co., 190 Mo. 620; Blair v. Railroad, 31 Mo.App. 231; Steinwender v. Creath, 44 Mo.App. 366; Schumacher v. Transit Co., 109 Mo.App. 233; McKnight v. Hudson, 116 Mo.App. 554; Boyce v. Railroad, 120 Mo.App. 175; Hudson v. Rodgers, 121 Mo.App. 177; Railroad v. Stock Yards, 120 Mo. 541.
Watts, Williams & Dines and Wm. R. Gentry for respondent, Illinois Central Railroad Company; J. G. Drennan of counsel.
Instruction No. 3 given for respondent is not subject to any of the criticisms made by appellant. It correctly declares the law. It sets forth the theory adopted by plaintiff. Flynn v. Railroad, 43 Mo.App. 424; Crouch v. Railroad, 42 Mo App. 248; Hurst v. Railroad, 117 Mo.App. 38; Parks v. Railroad, 178 Mo. 108.
This cause was reviewed by us before on questions different from those now presented. A report of the former decision will be found in 120 Mo.App. 652; but it will help the reader to restate the principal facts. The action counts on the common law liability of a carrier and was brought to recover for damage done to appellant's household furniture while in transit from Jackson, Mississippi, to East St. Louis Illinois, over three railroad companies; the respondent, the Illinois Central Company, The Southern Railroad Company and the Mobile & Ohio Railroad Company. The goods were received by respondent company at Jackson, and loaded in one end of a freight car which contained in the other end twenty barrels of flour. The car doors were sealed and the car carried by respondent to Winona, Mississippi, where it was turned over to the Southern Company, which carried it to West Point, Mississippi, and there after considerable delay, turned it over to the Mobile & Ohio Company. The delay at West Point was due to the refusal of the agent of the Mobile & Ohio Company to receive the car, on account of the damaged condition of the goods, until an arrangement was made by which the Southern Company delivered the property to the Mobile & Ohio as in bad order. Because the goods were damaged before delivery to the Mobile & Ohio Company, the action, which was originally against the three railway companies, was dismissed as to it. On the second trial a verdict was returned in favor of respondent, and appellant brought the case here, complaining of instructions given by the court. It will be observed the carriage of the goods was entirely outside this State and hence was not affected by our statutes providing that when shipments begin in this State the initial carrier shall be liable for damage occurring anywhere on the route. [R. S. 1899, sec. 5222; Crouch v. Railroad, 42 Mo.App. 248.] The case was tried by both parties on the assumption that either defendant was liable only for whatever damage occurred while the goods were in its charge and on its own line. The instructions given at the request of appellant allowed a verdict against the Illinois Central Company in the event the jury found the furniture was in good order when loaded on said company's car, and while it was in transit and before delivery to the Southern Company at Winona, it was broken or otherwise damaged. A counterpart of said instruction was granted at respondent's request, advising the jury it was not liable if the goods were delivered by it to the Southern Company at Winona in the same condition they were in when received for shipment at Jackson. But at the request of respondent the court also instructed that if the car was opened on June 26th between Winona, where the Southern Company received it, and West Point, to which said company carried it, and the goods were then in a damaged condition, and the goods on said date had been in the possession of the Southern Company since June 24th, the law, in the absence of evidence to the contrary, would presume any damage done after the goods were loaded at Jackson, occurred while they were in the possession of the Southern Company; and under the terms of the bill of lading offered in evidence, the Illinois Central Company was not liable for this damage. Appellant assigns the giving of this instruction for error. It advised the jury as to what the law would presume in a given instance, i. e., the absence of evidence to prove the damage to the goods occurred prior to June 24th, when the car passed into the care of the Southern Company, and that in said contingency the presumption was the damage occurred while the goods were in the custody of the Southern Company and respondent was not liable. The argument of counsel for respondent in favor of the instruction is, that the law presumes damage done to property in the course of its transit over the lines of two or more public carriers, occurred while it was in charge of the final carrier unless there is evidence to the contrary; and in support of this proposition they cite Crouch v. Railroad, 42 Mo.App. supra; Flynn v. Railroad, 43 Mo.App. 424; Hurst v. Railroad, 117 Mo.App. 25. When property is delivered to a carrier in good condition to be transported over its own line and the line or lines of one or more other carriers, and the property is damaged en route, for the purpose of giving an effective remedy to the owner, who can rarely prove what carrier was to blame for the damage, it is held proof the goods were delivered to the owner at destination by the final carrier in bad order, establishes a prima-facie case against said carrier. That is because it could have protected itself from responsibility for losses occurring prior to its reception of the property by an inspection of its condition at the transfer point. And moreover, sources of evidence regarding where the blame rests are more accessible to...
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