The Otis Company v. The Missouri Pacific Railway Company

• Decision Date: 12 December 1892
• Citation: 20 S.W. 676,112 Mo. 622
• Parties: The Otis Company v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

20 S.W. 676

112 Mo. 622

The Otis Company v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

December 12, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

Jackson & Montgomery for appellant.

(1) The bill of lading being a through bill from Texas to Massachusetts the Texas statute did not apply. The defendant could lawfully restrict its liability as provided in the bill of lading. Ryan v. Railroad, 65 Tex. 13; Railroad v. Adams, 78 Tex. 372; Railroad v Sherwood, 19 S.W. 455. The same rule prevails in Massachusetts, the destination of the shipment. School District v. Railroad, 100 Mass. 505. And also in Missouri. Ball v. Railroad, 83 Mo. 574. There was therefore, error in refusing defendant's third instruction. (2) The court erred in refusing defendant's second instruction. The consignor of goods has an implied authority from the consignee to stipulate as to the terms of transportation. Redfield on Carriers, sec. 52. (3) The court erred in refusing the defendant's first, fourth and fifth instructions. The defendant can only be held liable in this case on the ground that the fire which destroyed plaintiff's cotton was the result of defendant's negligence, and the burden of proving such negligence is on plaintiff. Whitworth v. Railroad, 83 N.Y. 413; Witting v. Railroad, 101 Mo. 631. There is no evidence in this case from which negligence on the part of any agent or employe of defendant can be inferred. The fire was an accident, at least, so far as the evidence indicates. Whitworth v. Railroad, supra; Ray on Negligence of Imposed Duties, p. 142; Haley v. Railroad, 69 Mo. 614; Kenney v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Catron v. Nichols, 81 Mo. 80; Peck v. Railroad, 31 Mo.App. 123; Alexander v. Railroad, 37 Mo.App. 609. (4) The court erred in giving the second and third instructions for plaintiff, and in refusing the defendant's sixth and seventh. The plaintiff's second and third ones are contradictory and leave it uncertain upon which theory the finding was made, nor do they state any measure of the degree of care required. The instructions, as a whole, authorize a recovery on account of want of ordinary care by the compress company. This was error. The bill of lading stipulated that the cotton might be compressed, but that defendant should not be liable for loss by fire, nor for any loss unless it occurred while the cotton was in the actual custody of defendant on its railroad. For the foregoing reasons the finding and judgment were against the law and the evidence, and were for the wrong party, and on these grounds the new trial should have been granted, and for the error in refusing it the case should be reversed.

Fred. Wislizenus for respondent.

(1) Under the clause in the bill of lading, "the carriers reserve to themselves the privilege of compressing all cotton signed for on this bill of lading," the defendant carrier became liable for the negligence of the compress company with whom it contracted for the compression of plaintiff's cotton, held under the bill of lading. Deming v. Merchants, etc., 90 Tenn. 306. (2) The trier of facts may, from the fact of an accident taken in connection with surrounding facts, draw reasonable inferences as to the existence of negligence, and as to the causal connection of negligence with the accident. Particularly is this true when the party whom it is sought to charge with negligence is in control of the premises where the event happened, and the accident is such as, in the ordinary course of things, does not occur without negligence. Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Lemon v. Chanslor, 68 Mo. 341; Hipsley v. Railroad, 88 Mo. 352; Furnish v. Railroad, 102 Mo. 453; Kenney v. Railroad, 70 Mo. 251; Frank v. City of St. Louis, 19 S.W. 938; Wharton on Evidence, sec. 871; Shearman & Redfield on Negligence, secs. 59, 60; Kearney v. London, etc., L. R. 6 Q. B. 759; Byrne v. Boudle, 2 H. & C. 722; Scott v. London Dock, 3 H. & C. 596; Lyon v. Rosenthal, 11 Hun, 48; Cummings v. National Furnace Co., 60 Wis. 612; Mullen v. St. John, 57 N.Y. 567; Thomas v. Tel. Co., 100 Mass. 156; Stokes v. Saltonstall, 13 Peters, 181; Railroad v. Pollard, 22 Wall. 342; Tuttle v. Railroad, 48 Iowa 236; Edgerton v. Railroad, 39 N.Y. 227; Eagle Packet Co. v. Defries, 94 Ill. 601; Steers v. Liverpool, 57 N.Y. 1; Kist v. M. L. S. & W., 46 Wis. 491. (3) First. This bill of lading must be construed as a Texas contract, not only because it was made in that state, but also because the provisions as to connecting carriers show that it must be so treated. Bigelow's note to star page 377 of Story's Conflict of Laws [8 Ed.]. Second. Under Texas law the restriction as to liability for loss by fire is void. Texas Civil Statutes, art. 278, tit. 13.

OPINION

Black, J.

Plaintiff, a corporation organized under the laws of the state of Massachusetts, brought this suit to recover damages for the loss of certain cotton delivered to defendant for shipment. It is alleged that the cotton was lost by the carelessness of defendant.

The answer sets up a clause in the bill of lading exempting defendant from liability in case of loss or damage by fire, and avers that the cotton was destroyed from such cause without fault or negligence on the part of the defendant.

The reply pleads a statute of the state of Texas, making void, so the plaintiff insists, the exempting stipulation so pleaded in the answer.

The court, sitting as a jury, found for the plaintiff, and assessed its damages at the agreed value of the cotton.

It was agreed on the trial that the plaintiff, through its agents, delivered to defendant at McKinney in the state of Texas one hundred bales of cotton to be shipped to Ware, in the state of Massachusetts, pursuant to a bill of lading which is made a part of the agreed facts; that defendant carried the cotton to Greenville in the state of Texas to have it compressed, and that sixty-two bales were destroyed by a fire, which occurred at the compress on the fourteenth of November, 1889.

The bill of lading provides that the cotton may pass through the custody of several carriers, and then follows this language: "Neither of said carriers, nor this company, shall be liable for loss or damage of any kind, occasioned by delays from any cause or by change of weather, or for loss or damage by fire, or for loss or damage on seas, lakes, canals or rivers, * * * The carriers reserve to themselves the privilege of compressing all cotton signed for on this bill of lading."

The evidence discloses the following facts: The structure used by the compress company consisted of a large shed closed on the north, west and south sides, but open on the east side, and a platform three hundred feet long, running north and south, and extending out east from the open side of the shed for a width of forty-five feet to a railroad track. This compress track, as it is called, was full of cars loaded with cotton at the time of the fire. The narrow-gauge cars were open, and the cotton on them exposed. The standard-gauge cars, with one exception, were closed box cars. There were some two thousand bales in the shed and on the platform. The men at work for the compress company moved a bale of uncompressed cotton from this open standard-gauge car to the platform, and thence by a truck for a distance of one hundred and fifty feet to the shed, and there placed it on one end. In five minutes thereafter fire was discovered in this bale, just above the lower end. The fire spread throughout the shed in the space of ten minutes. Though the machinery of the press was operated by steam, still it appears the boiler fires were allowed to go down on Saturday and had not been lighted since that time. The fire occurred at about 4:00 P. M. on the following Monday. Thus far there is no substantial conflict in the evidence.

The evidence tends to establish these further facts: That there were five or six railroad tracks fifty or sixty feet east of the compress track, all in use; that two engines were used for switching purposes, one a standard and the other a narrow gauge, but both operated by defendant; and that these engines were often on these tracks and near the compress. The more specific evidence is that the compress track was not used for switching purposes; that standard-gauge cars were set in on the north end, and narrow-gauge cars at the south end; that both engines were supplied with good spark arresters, and would not throw sparks far enough to catch cotton fifteen feet distant, and that they had not been on the compress track for an hour or two before the fire.

The compress company had in its employ some twenty or thirty persons, mostly negroes. One or two witnesses say smoking was not allowed around the premises; but there is much evidence to the contrary. Mr. Downer, who was defendant's freight agent at Greenville at the time of the fire, testified: It was a common thing to see the superintendent and clerks smoking in the office located in one part of the shed. I remember one instance of a negro employe carrying parlor matches stuck behind his ear, and of calling Superintendent Murphy's attention to it. The floor in the vicinity of the press was usually more or less covered with loose cotton. On the forenoon of the day of the fire I saw Superintendent Murphy on the east side of the engine room on the compress platform coming towards me with a cigar lighted in his hand. He was on top of some bales, and was putting out his cigar as he approached me. I spoke to him about it, and he said there was no fire in the cigar. Saw Chief Clerk Mattox smoking under the compress shed. There was cotton all around on these occasions. A few barrels of water,...