Wilson v. Wabash, St. L. & P. Ry. Co.

Citation23 Mo.App. 50
PartiesPETER G. WILSON, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
Decision Date28 June 1886
CourtCourt of Appeals of Kansas

APPEAL fro Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover damages for failure of defendant, a railroad corporation, to carry hogs of the plaintiff according to contract. The petition charged that the defendant, in March, 1882, agreed with plaintiff to ship a car load of hogs for him from Norborne, Carroll county, to East St. Louis, over its road, consigned to plaintiff's agent at said destination. That defendant failed to so do but instead, delivered to plaintiff's said agent another car load of hogs of an inferior quality, and of less value by two hundred dollars, all of which facts were unknown to plaintiff until after said hogs had been sold and disposed of.

The answer pleaded specially, after tendering the general issue as to other matters, a special contract of shipment sufficiently noted in the opinion hereafter, which provided that plaintiff should look after loading and unloading his hogs in the car, and have the care of them while in transit and stipulating that in case of damage growing out of the contract, plaintiff should give to defendant a written notice, sworn to, of the claim for damage or loss within five days after the hogs were removed from the car. It alleged that the fault, if any, in loading the hogs into the wrong car was that of the plaintiff, and that he had failed to deliver to defendant the required notice within the five days.

The reply admitted that plaintiff had not given the notice within five days, and alleged that he did not have notice until after the time had elapsed of the mistake made by defendant and as soon as the mistake was discovered plaintiff's said agent at St. Louis made demand of payment, and defendant promised to settle the same without objection to the time or manner of demand.

Plaintiff's evidence tended to show that he applied to defendant's station agent at Norborne for a car in which to ship sixty-five head of fat hogs to East St. Louis; that about dark, or a little after, the agent pointed out to him a car standing on its track at said station, and told him to load his hogs into it. Another party, Findley & McQuiston, were shipping hogs at the same time from this station. There were five cars on the track. McQuiston & Co. loaded in the front four cars, and the car in which the agent directed the plaintiff to load was the rearmost car. That plaintiff did load his hogs into the car so designated by the agent, and the hogs so left the station, and were carried off in said car. The plaintiff saw, or his servants saw, no number on the car. After completing the loading, the agent presented to plaintiff, or his agent, a contract of shipment to sign, which he did.

The consignment and bill of lading were made out to Metcalfe, Moore & Co., of St. La. More than five days thereafter, on receipt of returns from the consignee, the plaintiff discovered, from the lack of correspondence with the number of hogs he had shipped, and from the amount of sale, that there must be some mistake about the matter. He went to St. Louis, and on investigation became satisfied that his car load of hogs had not been properly consigned, and had not been received by his commission merchants. His evidence tended to show that the hogs sent by defendant to his merchant were part of those shipped by Finley & McQuiston. Failing to get any satisfaction from Findley & Co., or to obtain settlement from defendant, this action was brought. Defendant's evidence tended to show that the car pointed out by the agent at Norborne to plaintiff in which to ship was car nubered 3108, and it was the same car in which plaintiff loaded his hogs, and that this car went through to St. Louis without any change, and was duly delivered to Metcalfe, Moore & Co. That plaintiff loaded the hogs himself, or by his servants.

The plaintiff asked no instructions. The court gave quite a number, requested by defendant, and refused others. The court (sitting as a jury) found for plaintiff, and entered up judgment for two hundred dollars against defendant, from which defendant prosecutes this appeal.

GEO. S. GROVER, for the appellant.

I. The defendant was entitled to a judgment upon the pleadings. Rev. Stat., sects. 3524, 3525; Ennis v. Hogan, 47 Mo. 513.

II. The plaintiff was not entitled to recover in this action, as the mistake in loading the hogs was a risk, which, by the terms of the contract, he expressly assumed. Atchison v. Railroad, 80 Mo. 213; Newby v. Railroad, 19 Mo.App. 391.

III. The instructions asked by defendant on the question of notice correctly declared the law, and it was error to refuse them. Dawson v. Railroad, 76 Mo. 514; Brown v. Railroad, 18 Mo.App. 568.

IV. The tenth instruction, asked by defendant, should have been given. Authorities cited, supra.

SEBREE and HALE & SONS, for the respondent.

I. The answer contained new matter, and plaintiff filed a reply thereto. Defendant was not entitled to judgment on the pleadings. Rev. Stat., sect. 3524; Mortland v. Hatton, 44 Mo. 58; Nichols v. Looken, 79 Mo. 272.

II. The risk of loading was not comprehended in the contract in this case, and Atchison v. Railroad (80 Mo. 213), has no application to this case. So the other authorities cited are in plaintiff's favor.

III. The claim as notice of loss is not applicable here. There is no evidence that these hogs were ever unloaded to plaintiff's consignees. Plaintiff was not aware of his loss until after five days. The negligence of defendant made it impossible to give the five days' notice.

IV. The instructions of defendant were properly refused, because ignoring the right to recover for negligence independent of the contract, and of waiver of, and excuses for notice of, claim.

V. The tenth instruction was on the basis of transporting the hogs in a certain car,...

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