Brown v. Wabash

Decision Date06 July 1885
PartiesWILLIAM BROWN ET AL., Respondent, v. THE WABASH, ST. LOUIS AND PACIFIC R'Y. Co., Appellants.
CourtMissouri Court of Appeals

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, J.

Reversed and remanded.

Statement of case by the court.

This was an action instituted in the circuit court of Audrain county, Mo., to recover from defendant the sum of $150, the value of a mule alleged to have been lost in transit while on the railroad of defendant, between the town of Mexico and the city of St. Louis, Mo., on the 9th day of March, 1881, by reason of defendant negligently failing to furnish plaintiffs with a car of sufficient strength and durability in which to transport the mules shipped.

Defendant answered, setting up a written contract of shipment by which plaintiffs, in consideration of a reduced rate of freight, agreed and stipulated that no claim for damage should be allowed or sued for unless made out in writing, verified by affidavit, and delivered to the general freight agent at St. Louis within five days from the time of removing the stock from the cars. Also, that defendant should not be liable for more than one hundred dollars on account of the loss of any one mule.

It is further alleged in the answer, that said mule was lost while being transported by reason of plaintiffs' overloading the car, by fright of the mule and by crowding of one upon and against another, and defendant further states and charges, that plaintiffs wholly failed and neglected to make a claim for the loss of said mule in writing and verified by the affidavit of the plaintiffs or their agent, and deliver the same to the general freight agent of the defendant at his office in the city of St. Louis, within five days from the time said mules were removed from the cars in St. Louis.

Plaintiffs' reply was that they admit that they, by their agent, signed the contract set out in defendant's answer, but say that neither plaintiffs nor their agent knew anything about the stipulations and limitations contained in said contract in fine print, did not know there was any stipulation therein limiting the amount to be recovered in case of loss to $100; that nothing was said by plaintiffs or their agent, or by defendant or its agent as to the value of said mules, and that said contract was not signed with any view of liquidating the damages to be recovered in case of loss.”

The court gave for plaintiff the following instructions:

“1. The court instructs the jury that it is the duty of railroad companies to keep and furnish for the use of the public, good, sufficient, and safe vehicles or cars for the transportation of goods, merchandise, and live stock over their lines, and if the jury believe from the evidence in this case that the car furnished plaintiffs by the defendant for the transportation of said mules was not reasonably strong and safe to carry such animals, and that defendant knew this, or with reasonable care could have known it, and that, by reason of the insufficient strength of said cars so furnished, one of plaintiffs' mules was lost, then they should find for the plaintiffs.

2. The jury are instructed that railroad companies carrying live stock cannot limit their liabilities by contract for losses sustained by reason of their own negligence or misconduct.

4. If the jury find for plaintiffs they will assess their damages at the value of said loss of animal at the place of delivery at the time, unless the jury believe that the plaintiffs agreed with the defendant, by contract fairly entered into for the purpose, that the value of said mules should be fixed at one hundred dollars each.

5. If the jury find for the plaintiffs, and also find that the contract fixing the value of said mules at one hundred dollars each, was fairly entered into by plaintiffs and defendant, for the purpose of liquidating the amount to be recovered by plaintiffs in case of loss, then they will assess damages at said one hundred dollars and interest at six per cent, from the date of filing this suit.”

And for defendant the following instructions:

“1. And the mere fact that the slats on said car were broken by plaintiffs' mules, and that the mule was lost by reason thereof is not of itself sufficient evidence to entitle plaintiffs to recover.

2. If the jury believe from the evidence that the car on which said mules were shipped was in a reasonably good condition, and reasonably safe for the shipment of such animals, then the verdict must be for the defendant, and although the jury believe from the evidence that said mule was lost by the breaking of the slats on said car.

3. The court instructs the jury that plaintiffs' mules were shipped under the contract read in evidence.

4. If the jury believe from the evidence that the car in question was reasonably safe for the shipment of mules, and that said car was broken and said mule lost therefrom by reason of the crowding of the mules upon or against each other, the verdict must be for the defendant.

5. The court instructs the jury that before plaintiffs can recover they must show by the evidence, to the reasonable satisfaction of the jury, that said mule was lost by reason of defects in the car, and not alone by reason of kicking or crowding of said mules against each other.”

Instruction given by the court of its own motion.

“Unless the jury believe from the evidence in the case that the claim for the loss of the mule was made in writing, verified by the affidavits of the plaintiffs, or some one of them, or by their agent, and delivered to the general freight agent of the defendant at his office in the city of St. Louis, within five days from the time of the removal of said mules from the railroad, the verdict must be for the defendant, unless the jury further believe from the evidence in the case that the defendant was, within said period, notified by plaintiffs of such loss in some other manner than that specified, and at the time passed on plaintiffs' claim and made no objection to the form or manner of such notice.”

Defendant's instructions refused:

“6. The court instructs the jury that if they find for the plaintiffs, their verdict can in no way exceed the sum of one hundred dollars.

7. Unless the jury believe from the evidence in the case that a claim for the loss of the mule was made in writing, verified by the affidavit of plaintiffs, or some one of them, or by their agent, and delivered to the general freight agent of defendant, at his office in the city of St. Louis, within five days from the time of the removal of said mules from the car, the verdict must be for the defendant.”

Under the instructions of the court, the jury returned the following verdict:

We, the jury, find for the plaintiffs, one hundred and thirty-seven dollars and fifty cents, including the interest.”

After an unsuccessful motion for a new trial, in which the usual grounds were assigned, defendant in due time perfected its appeal.

GEO. S. GROVER, for the appellant.

I. Under the pleadings and evidence plaintiffs were not entitled to recover, as the case falls clearly within the exemptions contained in the contract, and no negligence on the part of defendant was proved. This accident was occasioned by the vicious disposition of the animals and was expressly assumed by the plaintiffs. Clark v. R. R., 64 Mo. 440; Dawson v. Same, 76 Mo. 514; R. R. v. Cleary, 77 Mo. 634; Dawson v. C. & A. R. R., 79 Mo. 296; R. R. v. Spears, 66 Georgia 485; Hart v. R. R., 112 U. S. 331.

II. Even if plaintiffs were entitled to recover in this action, the damages were, by the contract, liquidated and fixed at one hundred dollars. This could be done legally. Harvey v. R. R., 74 Mo. 338; Hart v. R. R., 112 U. S. 331.

III. The instructions given for plaintiff were manifestly erroneous. The second and third have no application to this case. The fourth and fifth are in conflict with Harvey's Case and Cleary's Case, heretofore cited. Besides, the jury were misled by them.

IV. Nor was the effect of these instructions counteracted by the instructions given for defendant. The evil effect of erroneous instructions cannot be cured by correct instructions given at the instance of the opposite party. Thomas v. Babb, 45 Mo. 384; Goetz v. R. R., 50 Mo. 472; State v. Nanert, 2 Mo. App. 295.

V. The instruction given by the court of its own motion was also erroneous. There was no evidence of claim of loss, even substantially, as provided for by the contract, nor any waiver of these provisions. Tucker v. R. R., 54 Mo. 177; Mayberry v. R. R., 75 Mo. 492; Dawson v. R. R., supra; Cleary v. R. R., supra.

D. T. GENTRY, for the respondent.

I. The evidence shows that the cars were not safe or secure for proper transportation. The first, second and third instructions were properly given. Rev. Stat. Mo. (1879) sect. 862. Moore v. Lonboard, 40 Mo. 491; Ketchum v. Am. Exp. Co., 52 Mo. 390; Rice v. K. P. R. R., 63 Mo. 314; Kirby v. Ad. Exp. Co., 2 Mo. App. 369; Levering v. Trans. Co., 42 Mo. 88.

II. The fourth and fifth instructions were properly given. This case does not come within the meaning or spirit of Harvey v. R. R. Co. (74 Mo. 538). There was no intention in this case to liquidate the damage in case of loss, as in the Harvey case. Plaintiff here had to ship under this contract or not at all, and besides paid regular freight rates. Union R. R. Co. v. Traube, 59 Mo. 355; Sturgeon v. R. R., 65 Mo. 569; Gray v. Packet Co., 64 Mo. 47; Harvey v. R. R., 74 Mo. 538; Stone v. Bennett, 8 Mo. 41.

III. The claim was made out and sent in on the 12th or 13th of March--before the five days had expired.

IV. The instructions, as a whole, fairly presented the law applicable to the testimony in the case, and were not misleading. Kurle v. R. R. Co., 55 Mo. 476; Myers v. R. R. Co., 59 Mo. 223.

Opinion by ELLISON, J.

Carriers are not responsible for an injury to animals resulting from their own inherent propensities. Potts v. Ry. Co. (17 Mo. App. 394.) Yet they...

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