Train v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 02 April 1923
• Docket Number: No. 14622.,14622.
• Citation: 214 Mo. App. 354,253 S.W. 497
• Parties: TRAIN v. ATCHISON, T. & S. F. RV. CO. et al.
• Court: Missouri Court of Appeals

253 S.W. 497

214 Mo. App. 354

TRAIN v. ATCHISON, T. & S. F. RV. CO. et al.

No. 14622.

Kansas City Court of Appeals. Missouri.

April 2, 1923.

Rehearing Denied April 30, 1923.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

Action by Robert L. Train against the Atchison, Topeka & Santa Fe Railway Company and the A. B. C. Fireproof Warehouse Company. Judgment for plaintiff, and defendants appeal. Reversed as to Railway Company, and affirmed as to Warehouse Company.

Cyrus Crane, Geo. J. Mersereau, John H. Lathrop, and Winston H. Woodson, all of Kansas City, for appellant Atchison, T. & S. F. Ry. Co.

William G. Holt and J. K. Cubbison, both of Kansas City, for appellant A. B. C. Fireproof Warehouse Co.

Hogsett & Boyle, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action Is to recover for the loss of an automobile destroyed by fire. Verdict and judgment for $6,475 were obtained against both defendants, and they have appealed.

A part of the business of the defendant A. B. C. Fireproof Warehouse Company is to receive automobiles from individual owners, and prepare and load such vehicles into collective carload shipments of three in a car when that many are desired to be sent to the same point. In doing this the warehouse company does the work of preparing and loading the automobiles, the railway company having nothing to do in that respect. In such cases the warehouse company pays the freight on the carload, obtains the bill of lading from the railroad issued to the warehouse company as shipper, and the owner of each automobile pays to the warehouse company his proportionate part of the freight bill, plus an additional sum as compensation to the warehouse company for its services. In this way each owner is enabled to have his automobile transported at less expense than if he shipped it alone.

On October 26, 1920, the warehouse company received plaintiff's automobile for the purpose of loading and preparing it for transportation in a collective carload shipment, with two other automobiles, in a freight car over the Santa Fe railway, from Kansas City, Mo., to Los Angeles, Cal. The contract under which the automobile was received stated that its reception was for the purpose of forwarding it in the first collective carload consignment from Kansas City to Los Angeles, and that in so doing the warehouse company was acting "only as agent for the owner and not in the capacity of a common carrier ;" that it was received for shipment subject to the terms and conditions of the uniform bill of lading issued by the railroad on whose line it was to be shipped, and that the responsibility of the warehouse company should "cease upon delivery of the goods to the railroad company in good condition."

The petition charged that plaintiff delivered said property to the warehouse company "to be forwarded from Kansas City, Mo., to Los Angeles, Cal.;" that the warehouse company "for hire, accepted said property, and undertook to, and did, deliver the same to the defendant Atchison, Topeka & Santa Fe Railway Company at Kansas City, Mo., to be carried by said railway company from Kansas City, Mo., to Los Angeles, Cal.;" that the railway company, as a common carrier for hire, "accepted said property and undertook to carry" the same, and to redeliver it to plaintiff or his agents at Los Angeles. The petition then alleged that "defendants placed said property in an inclosed freight car of the defendant railway company at Kansas City, Mo., along with other property, including other automobiles and equipment;" that thereafter the "defendants, their agents and employees entered said freight car for the purpose of preparing said property for shipment, and negligently carried a lighted lantern in said freight car, and negligently undertook to drain and remove the gasoline from one or more of the automobiles in said car while said lighted lantern was near by, when they knew, or by the exercise of ordinary care should reasonably have anticipated, that there was imminent danger of the said gasoline and the gas vapor and the fumes therefrom becoming ignited by the flame in said lantern, and imminent danger of a dangerous explosion and fire directly resulting therefrom which would cause damage to the property in said car, including plaintiff's property;" that "while defendants and their agents and employees were in the act of draining and removing the gasoline from one or more of said automobiles with said lighted lantern near by, as aforesaid, said gasoline and the gas, vapor, and fumes therefrom became ignited by the flame in said lighted lantern," thereby directly causing a fire which totally destroyed the property; that the loss was "directly caused by the aforesaid negligence of the defendants, their agents and employees," and that the aforesaid negligent acts of said agents and employees were performed by them "while they were engaged in, upon, and about the business of the defendants, and within the line and scope of their respective authority and employment as the agents and employees of their respective defendants."

The warehouse company set up the purpose and terms under which it received the automobile, and alleged that it delivered said property to the railway company by loading it into the latter's freight car; that the railway company, after inspecting the shipment, received it, issued its bill of lading, and undertook to carry said property to Los Angeles; that the property was burned while in the exclusive control and custody of the railway company, without any negligence on the part of the warehouse company. It denied that any of its servants negligently undertook to drain the gasoline or carried a lighted lantern into said car, or had one therein, and asserted that, if any person carried a lighted lantern into said car or undertook to drain any gasoline from any automobile, they were not engaged in any business of the warehouse company, but were acting entirely outside the scope of their authority and employment as employees of the warehouse company.

The railway company denied generally, and then set up that at the time of the fire plaintiff's automobile had not been delivered to it, but was still in the hands of the warehouse company and its employees; that the loss was caused by the acts or defaults of the shipper or owner, or its or his servants, in attempting to drain gasoline from the automobiles, and in taking into said car a lighted lantern while draining said gasoline. The allegations of the warehouse company's answer were also denied. The replies of plaintiff to each of said answers were in the nature of general denials.

The respective owners of the other two automobiles, which were also destroyed, likewise brought suit against both defendants, and, as judgment went for the plaintiff in each of those suits, they, too, have been appealed and are now pending in this court, namely, case No. 14435. Stevenson v. Atchison. etc., R. Co., 254 S. W. ___a, and case No. 14590. Ormsby v. A. B. O. Fireproof Warehouse Co., 253 S. W. 491. In the former or Stevenson Case a dismissal as to the warehouse company was entered after the evidence was in, and judgment was obtained against the railway company alone, while in the latter or Ormsby Case the plaintiff, at the close of the evidence, dismissed as to the railway company, and proceeded to judgment solely against the warehouse company. The evidence, in broad outline, is pretty much the same in all three cases, hut, owing to important differences in certain details, and because of differences in pleading and the course pursued in each trial, reference cannot well be made to either one of the opinions in the other two cases for a statement of the facts, but they must be stated in this case as if it were the only one of the three before us.

The freight car into which the automobiles were loaded was especially designed for the shipment of automobiles, having, in addition to the usual side doors, a door in the end which afforded an opening as large as the end of the car itself. The freight car was set with its open end against the Santa Fé's loading dock, so that the automobiles could be run into the car and "blocked" or fastened therein, one after the other. Plaintiff's automobile was a Lafayette, while the other two were respectively a Haynes and a Franklin.

The work of preparing and loading the automobiles for shipment was done by two of the warehouse company's employees, Hulse and Richardson, under the direction of said company's superintendent, McLane, who was present, however, only a part of the time. The evidence is that the two men, under McLane's direction, were loading and fixing the Haynes automobile in the freight car when plaintiff's automobile was delivered to the warehouse company at the dock for plaintiff by the Lafayette Motor Car Company, from whom he had just purchased it. There is evidence that when the automobile was thus delivered and left on the dock at the end of the freight car Wilcox, the man who delivered it, suggested that the automobile be drained, and asked if he should drain the gasoline and water. He received a negative reply, and was told that the men had tools to do that with, and they would take care of that when they got ready for it. In order to drain the water it was necessary to open three cocks, and Wilcox says he told the men it was easier for him to drain the water than to show them how to do it, and he thereupon did so. The man to whom Wilcox talked said he knew how to drain the gasoline, and Wilcox left that to them, remarking, "So far as the gasoline is concerned, that is an easy matter." There is evidence that the man to whom Wilcox talked was McLane, though the latter, who was also placed upon the stand by plaintiff, says no such conversation as Wilcox testified to ever took place.

In loading the automobiles, the Haynes was first backed into and against the further end of the car, and, in order...