Creel v. Missouri Pacific Railway Company

• Decision Date: 03 May 1909
• Citation: 119 S.W. 30,137 Mo.App. 27
• Parties: T. C. CREEL, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

119 S.W. 30

137 Mo.App. 27

T. C. CREEL, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 3, 1909

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

Elijah Robinson and Harris Robinson for appellant.

(1) The court committed error in not permitting defendant to put in evidence the contract under which the horse was shipped. O'Bryan v. Kinney, 74 Mo. 125; Railroad v Cleary, 77 Mo. 634; Rice v. Railroad, 63 Mo 314; Kellerman v. Railway, 136 Mo. 177.(2) Delivery is completed by the acceptance by the owner or consignee of the goods before they are unloaded. If the owner or consignee voluntarily undertakes to unload goods, he becomes responsible for any loss or injury incurred during the work of unloading, even though he has the assistance of the carriers' servants. Lewis v. Western R. Corp., 11 Metc. (Mass.) 509; Sweet v. Barney, 23 N.Y. 337; Loveland v. Burke, 120 Mass. 139, 21 Am. Rep. 507; Whitney Mfg. Co. v. Railway, 38 S.C. 365, 37 Am. St Rep. 767, 55 Am. and Eng. R. R. Cas., 611; Armstead Lbr. Co. v. Railway, 11 So. 365, 55 Am. and Eng. R. R. Cases, 600. There are no Missouri decisions in point.

Conkling & Rea and Bruce Barnett for respondent.

(1) The court committed no error in excluding from evidence the stock shipment contract offered by appellant railroad company. It recites its consideration, viz.: a special or reduced rate which is illegal and therefore no consideration at all. Being without a legal consideration, this contract is void upon its face, and therefore was properly excluded. R. S. 1899, sec. 1129; Ward v. Railway, 158 Mo. 234. (2) The fact that plaintiff's servant, George Anderson, assisted in unloading the horse does not relieve the railroad company from liability nor bring the case within the rule announced in the authorities cited in appellant's brief.

OPINION

JOHNSON, J.

Plaintiff bought a horse valued at $ 250 at Marshall and had it shipped to him over defendant's railroad to Kansas City. The animal was injured while being taken from the car and this suit is for the recovery of the damages resulting to plaintiff from the injury.

The petition on which the cause was tried is in two counts. In the first, the cause of action stated is the failure of a common carrier to discharge its common law duty to transport the property received for shipment and to deliver it in good condition to the consignee at its destination. In the second count, the cause pleaded is the negligence of defendant in unloading the horse from the car at Kansas City. Defendant in its answer admits the existence of the relation of common carrier and shipper between itself and plaintiff with respect to the shipment, but denies that the animal was injured by the fault or negligence of defendant and interposes defenses based on the terms and conditions of the written contract of affreightment executed by defendant and the consignor. A reply was filed putting in issue the allegations of new matter in the answer. The cause was tried before a jury. At the conclusion of the evidence, plaintiff, being required by the court to elect on which count of the petition he would stand, took a non-suit as to the second count and stood on the first. Verdict and judgment were for plaintiff on this count in the sum of $ 100, and the cause is here on the appeal of defendant.

Evidence introduced by plaintiff discloses the following facts. On learning that the horse had arrived at Kansas City, plaintiff sent a colored man who was expert in the handling and care of horses to receive and take charge of it. The man presented the bill of lading to defendant's agent and paid the freight charges with money furnished by plaintiff. Accompanied by an employee of defendant, he went to the car which was standing alongside an unloading platform of about the same height as the floor of the car. Defendant's employee procured a portable platform about five feet in width to bridge the space between the car door and the unloading platform. The portable platform was not equipped with side rails or guards and, according to the contention of plaintiff, was too narrow for use as a passageway for horses. Plaintiff's servant went into the car for the horse and was bringing him out when the animal becoming frightened, from some cause, jumped to one side, fell, and landed astride the portable platform. Before he could be extricated, he became lacerated and bruised on the legs and belly to an extent to render him useless for a long period. Plaintiff finally sold him for $ 260, but not until he had expended about $ 150 on account of his injuries.

Defendant offered in evidence the "Live Stock Contract" under the terms of which the shipment was made. This contract recited that the rate charged for the shipment was less than the rate charged for shipments at carrier's risk "for which reduced rate and other considerations it is mutually agreed between the parties hereto as follows . . . Third, that said second party (the shipper) . . . shall load and unload the same at his own expense and risk." Other restrictions in the contract of defendant's common law liability are relied on by def...