E. O. Stanard Milling Company v. White Line Central Transit Company

Citation26 S.W. 704,122 Mo. 258
PartiesE. O. Stanard Milling Company, v. White Line Central Transit Company, Appellant
Decision Date24 May 1894
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court.

Reversed and remanded.

Everett W. Pattison for appellant.

(1) Plaintiff made no case entitling it to go to the jury, and defendant's demurrers to the evidence should have been sustained, both the one offered at the close of plaintiff's case, and that offered at the close of the whole case. Gray v. Packet Co., 64 Mo. 49; McLean v. Rutherford, 8 Mo. 13; Graves v Poage, 17 Mo. 91; Whitney v. Bank, 55 Vert 155; S. C., 45 Am. Rep. 598. It follows that, even should it appear that errors were afterward committed, such errors could not have been prejudicial to the plaintiff. But no subsequent errors were committed. (2) The bills of lading were properly admitted in evidence, and their admission furnished no ground for setting aside the verdict. Gashweiler v. Railroad, 83 Mo. 112. (3) The instruction numbered 5, given at the request of defendant was not erroneous, misleading, or prejudicial to plaintiff, and furnished no ground for setting aside the verdict. Whitney v. Bank, 55 Vert. 155; S. C., 45 Am. Rep. 598; Chiles v. Garrison, 32 Mo. 475; McLean v. Rutherford, 17 Mo. 91; Gray v. Packet Company, 64 Mo. 49; Eddy v. Livingstone, 35 Mo. 487; Gashweiler v. Railroad, 83 Mo. 112. (4) None of the remaining grounds set up by plaintiff in its motion for a new trial were well taken, and none of them furnished any ground for setting aside the verdict.

Campbell & Ryan for respondent.

(1) The trial court properly granted a new trial for the first reason given in its opinion. The bill of lading did not exempt defendant from liability for loss or damage by fire, while the goods were at the terminal station, and in its charge as warehouseman. Gashweiler v. Railroad, 83 Mo. 112. (2) The bill of lading should be construed strictly and most strongly against the carrier. 2 Redfield on Law of Railways [6 Ed.], p. 123, sec. 17; Barter v. Wheeler, 49 N.H. 9-31; Nicholas v. Railroad, 89 N.Y. 370; Holsapple v. Railroad, 86 N.Y. 275; Elliott v. Railroad, 33 N.Y.S. R. 861. (3) The trial court properly granted a new trial for the second reason given in its opinion. It was the duty of defendant, even as a gratuitous bailee, to exercise a degree of reasonable care that the average man would exercise and commensurate with the duty undertaken, the trust reposed in it, and the character of the goods, etc., and for a breach of this duty, it was liable, although it may have seen fit to make no effort whatever to save its own goods. Edwards on Bailments [3 Ed.] (1893), sec. 46; Story on Bailments [9 Ed.], secs. 63, 64, 65, 66; Huxley v. Hartzell, 44 Mo. 370; Eddy v. Livingston, 35 Mo. 487; Rooth v. Wilson, 1 Barn. and Ald. 59; Doorman v. Jenkins, 2 A. and E. 256 (Denman, J., 258; Taunton, J., 261). (4) The defendant was not a gratuitous bailee, but was a bailee for hire, and hence subject to the legal obligations of a bailee for hire, as stated under point 3, in respect to the care to be exercised in storing and looking after the property. (5) That no warehouse charge was fixed by the notice makes no difference; the defendant, after the notice, could charge what the storage was reasonably worth. 2 Redfield on the law of Railways [6 Ed.], p. 86, sec. 11; Edwards on Bailments [3 Ed.] (1893), sec. 336, p. 256; Gray v. Packet Co., 64 Mo. 49; Dougherty v. Whitehead, 31 Mo. 255; Railroad v. Alexander, 20 Ill. 23. (6) The trial court erred in giving instruction number 7 offered by defendant with respect to the burden of proof, and for that reason, also, the new trial should have been granted. The plaintiff having proved that defendant received the goods as warehouseman, and had failed to deliver them or pay their value on demand, the burden was then upon defendant to show it had exercised reasonable care in storing and keeping the flour; that being proved, the burden would have then rested on plaintiff of proving that the loss was due to defendant's negligence. Kincheloe v. Priest, 89 Mo. 240; Wiser v. Chesley, 53 Mo. 547; Huxley v. Hartzell, 44 Mo. 370; Goodfellow v. Meegan, 32 Mo. 280; Taussig v. Schields, 26 Mo.App. 318; Collins v. Bennett, 46 N.Y. 490; Burnell v. Railroad, 45 N.Y. 184; Cummins v. Wood, 44 Ill. 416; Bennett v. O'Brien, 37 Ill. 250; Boies v. Railroad, 37 Conn. 272; Logan v. Mathews, 6 Pa. St. 417; Shearman & Redfield on Negligence [2 Ed.], sec. 12; 2 Thompson on Trials, p. 1321, et seq. (7) The duty of defendant as a carrier of this flour was to deliver it to plaintiff upon its arrival in New York, or exercise reasonable care to store it in some safe and suitable place. Machine Co. v. Railroad, 71 Mo. 203; Burnell v. Railroad, 45 N.Y. 184; Plains Co. v. Railroad, 1 Gray, 263; Hutchinson on Carriers [2 Ed.], sec. 378; 2 Redfield on the Law of Railways [6 Ed.], p. 80. (8) That being done, its liability as a carrier was at an end, and its liability as warehouseman for hire commenced, and its legal responsibility in that capacity was to furnish a suitable warehouse properly secured in which to deposit the goods. Remington v. Sheldon, 10 R. I. 218; Hatchett v. Gibson, 13 Ala. 587; Aldrich v. Railroad, 100 Mass. 31; Lane v. Railroad, 112 Mass. 455; Express Company v. Baldwin, 26 Ill. 504; Story on Bailments [9 Ed.], sec. 450, note 2, page 415; Edwards on Bailments [3 Ed.] (1893), secs. 344, 345; Hutchinson on Carriers [2 Ed.], sec. 378. (9) This fire was a result that ought reasonably to have been anticipated by an ordinarily prudent man, to have followed from the location and continued use of the lard factory building in the defendant's freight yards; this makes defendant's negligence a question of fact for the jury. Miller v. Railroad, 90 Mo. 389; Poeppers v. Railroad, 67 Mo. 715; McGrew v. Stone, 53 Pa. St. 436; Huyett v. Railroad, 23 Pa. St. 374; Railroad v. Pennell, 110 Ill. 435; Railroad v. Haworth, 39 Ill. 347; Whitaker's Smith on Negligence, 68. (10) Evidence that there had been a previous fire in the building where this started, was competent to show knowledge by the railroad that the building rendered the freight yards unsafe. Otis case, 112 Mo. 622; Wood case, 64 Miss. 661; Stoher v. Railroad, 105 Mo. 192; District of Columbia v. Armes, 107 U.S. 519; Railroad v. Richardson, 91 U.S. 454; City v. Lowry, 74 Ind. 520; Gagg v. Vetter, 41 Ind. 228; Wooley v. Railroad, 83 N.Y. 121; Field v. Railroad, 32 N.Y. 339; Railroad v. Ashcraft, 48 Ala. 15; Parkinson v. Railroad, 61 N.H. 416; Darling v. Westmoreland, 52 N.H. 401; Longabough v. Railroad, 9 Nev. 271. (11) Evidence of the removal of the Wilcox Lard Company's works to the Jersey side, and of the rebuilding of a warehouse upon the same site, being immediately subsequent to the fire was competent to show that defendant knew it should never have permitted such a business to be carried on in its freight yards. Gutridge v. Railroad, 105 Mo. 520; Brennan v. St. Louis, 92 Mo. 482; Mitchell v. Plattsburg, 33 Mo.App. 555.

OPINION

Burgess, J.

This is an action against the defendant on its common law liability as a common carrier. The petition alleges that defendant "is a common carrier for goods for hire and as such received from plaintiff certain flour to be carried to New York and there delivered to plaintiff." It also avers that defendant carried the flour to New York, but did not deliver it to plaintiff, but stored it; that it reached its destination on the twenty-seventh, twenty-eighth and thirtieth days of March, 1889, and was, on the nineteenth of April, 1889, while in defendant's possession, by reason of the failure of defendant to exercise reasonable and ordinary care of the flour while so stored, destroyed and lost to plaintiff. The value of the flour, at the time of its destruction, is alleged to be $ 2,542.50.

Defendant, in its answer, admits the receipt and transportation of the flour; that it arrived at defendant's terminal depot in New York as alleged, and at the times mentioned in plaintiff's petition, but avers that it was transported under a special contract. It then, by way of defense, alleges: That the contract exempted it from liability for loss or damage by fire while at depots; that on the next business day after the arrival of each shipment, defendant gave plaintiff notice of such arrival, and that the flour was ready for delivery to plaintiff's order, and notified it that if the flour was not removed within twenty-four hours it would be stored at plaintiff's risk; that plaintiff did not remove the flour, nor order it delivered within the twenty-four hours; that thereupon defendant stored the flour and held it without charge to plaintiff until it was destroyed by fire. The answer then denies all allegations of negligence, and then sets up, by way of counterclaim, its demand for freight on the flour amounting to $ 261, which it avers plaintiff has never paid.

Plaintiff, by way of reply, denied all allegations in the answer.

The evidence showed the following state of facts: That the flour arrived at the sixteenth street station of the N. Y. Central & Hudson River Railroad Company, which was defendant's terminal depot in New York, on the respective days mentioned in the petition; that, from and after its arrival, defendant was ready to deliver it, lighterage free, at any point where plaintiff might order it delivered, on either side of the Hudson river, or of the East river, or at Staten Island; that within twenty-four hours after the arrival of the flour plaintiff was notified of its arrival, that it was ready for delivery, and that, unless an order were given for delivery within twenty-four hours thereafter, it would be stored at the risk of the owner, and defendant would no longer be...

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