33 Mo.App. 269 (Mo.App. 1888), Costigan v. Michael Transp. Co.

Citation:33 Mo.App. 269
Opinion Judge:PEERS, J.
Party Name:JAMES COSTIGAN, Respondent, v. MICHAEL TRANSPORTATION COMPANY, Appellant.
Attorney:Campbell & Ryan, for the appellant. Rufus J. Delano, for the respondent.
Case Date:December 18, 1888
Court:Court of Appeals of Missouri
 
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Page 269

33 Mo.App. 269 (Mo.App. 1888)

JAMES COSTIGAN, Respondent,

v.

MICHAEL TRANSPORTATION COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

December 18, 1888

Appeal from the St. Louis City Circuit Court. --HON. DANIEL DILLON, Judge.

REVERSED AND REMANDED.

Campbell & Ryan, for the appellant.

The judgment is without any evidence to support it, and should, therefore, be reversed. Schenck v. Sautler, 73 Mo. 46. The rule is tat a verdict in a law action unsupported by any substantial evidence will not be allowed to stand. Avery v. Fitzgerald, 94 Mo. 207-216; Lionberger v. Pohlman, 16 Mo.App. 392; Fischer v. Merchants' Co., 13 Mo.App. 133. It was reversible error to admit testimony against defendant's objection that, in the early part of 1888 (nearly a year after the accident), the pilot of the vessel had gotten into trouble through drunkenness. Hipsley v. Railroad, 88 Mo. 349; Ely v. Railroad, 77 Mo. 34; Hayes v. Railroad, 15 Mo.App. 584. And this rule applies, although the case was tried by the court, sitting as a jury, as this likely influenced its finding. McDonald v. Matney, 82 Mo. 358-366. It was error to permit plaintiff to bring out on cross-examination of Little, and against defendant's objection, testimony as to a conversation between Little, the pilot, and Martin Michael, president of defendant, had long after the accident occurred, to the effect that the latter had charged the former with " " having done bad work" --" he ought not to be paid," etc. Aldridge v. Blast Co., 78 Mo. 559; McDermott v. Railroad, 73 Mo. 516; Wengler v. Railroad, 16 Mo.App. 493. The judgment of the court was contrary to the instructions given by it, and should, therefore, be reversed. There was error in basing the italicized part of certain instructions given upon hypotheses not warranted by the evidence. Pepkin v. Haucke, 15 Mo.App. 373. The court erred in refusing the instructions asked by defendant and in giving them in a modified form, also in giving plaintiff's instructions. By altering defendant's instructions the court made them its own. Allen v. Mansfield, 82 Mo. 688. The instructions as given by the court are inconsistent and contradictory, and the judgment cannot be allowed to stand. Updike v. City, 94 Mo. 234; Pearce v. Railroad, 77 Mo. 508-512; Stevenson v. Hancock, 72 Mo. 614; Staples v. Town, 69 Mo. 594; Legg v. Johnson, 23 Mo.App. 590.

Rufus J. Delano, for the respondent.

There was ample testimony to permit the trial court in its discretion to render a verdict for plaintiff, the rule of law being that the appellate court will not weigh the evidence nor interfere with the verdict when there is any evidence to support it. " Where there is no evidence to support a finding and judgment they will not be set aside because of introduction of incompetent testimony, to which no objection was made at the trial." Christian v. Lademan, 5 Mo.App. 594; Naughton v. Stagg, 4 Mo.App. 274. " Objections to evidence will not avail on appeal unless the grounds thereof were specified at time objections were made." Primm v. Raboteau, 56 Mo. 407; Davis v. Hilton, 17 Mo.App. 319; Wayne Co. v. Railroad, 66 Mo. 77; Naughton v. Stagg, 4 Mo.App. 274. The instructions given by the court were fair and consistent with the facts in evidence. " Defendant must make a case in which no neglect of its own appears, presumption is that goods were lost through carrier's negligence." Kerby v. Adams Express Co., 2 Mo.App. 369; Isenberg v. Steamboat, 13 Mo.App. 415. In Hill v. Sturgeon, 28 Mo. 323, the condition in that bill of lading, " dangers of navigation," was even more favorable to defendant than in ours, viz., " unavoidable dangers," etc. In that same case, the court says, " all human agency must be excluded, and do not embrace accidents such as may be avoided by the exercise of that skill, care, judgment or foresight which are demanded from persons in a particular occupation." The duty of the carrier if he enters into the contract (he knowing what might happen) is continuous until the goods are delivered to plaintiff. Isenberg v. Steamboat, 13 Mo.App. 415; Steamboat v. King, 12 Mo. 278.

OPINION

PEERS, J.

This is an action against the defendant as a common carrier for failure to deliver all the goods of the consignor entrusted to its charge. The petition alleges the incorporation of the defendant, and that on the fourteenth of May, 1887, plaintiff delivered to the defendant, near the mouth of the Big Muddy river, for transportation to St. Louis, forty-seven hundred railroad crossties, agreeing to pay defendant for their transportation and delivery at the rate of ten cents per tie, and received defendant's bill of lading therefor; that the defendant failed to deliver fourteen hundred of the ties of the value of forty-eight cents each, and concludes with a prayer for judgment for six hundred and seventy-two dollars against the defendant company and defendant Martin Michael.

The answer of the company was, first, a general denial of all allegations not afterwards admitted, and further answers in substance, that it owned the seaworthy steamer " Mary M. Michael," and seaworthy barge " Freihaut" and contracted in writing with plaintiff to carry on said barge forty-seven hundred ties from Big Muddy river, Illinois, to St. Louis, Mo., " the unavoidable dangers of navigation, fire, explosion and collision excepted; " that the steamer and barge started up the river on May 14, 1887, fully manned, equipped and provided for the voyage; that on May 16, 1887, about one o'clock A. M., while the steamer was on said voyage and in the channel of the river at a point opposite Lilly's landing, the barge " Freihaut" was sunk by coming in contact with a snag in the river; that the snagging and sinking of the barge were not due to any want of care or skill on the part of those managing the steamer and barge, but was wholly due to the collision with the snag which could not be seen or avoided; that the loss of the barge was due to unavoidable danger of navigation excepted from in the bill of lading; that when the barge sunk the ties floated off in the river and were carried away by the current; that in spite of every effort made by defend ant that could have been made to save and recover same 1,253 ties were lost; that defendant recovered the remainder, 3,447, and delivered them to plaintiff at St. Louis.

For a first counter-claim defendant alleges the same facts as to the contract and accident, and alleges that when the ties were floated off the barge at the time it sunk it became necessary for defendant, acting for the best interest of plaintiff, with whom it could not communicate, to employ men to catch and restore 3,437 of said ties at a cost of two cents each, and it paid said men therefor $68.74. It also was compelled to hire the barge " Pike" and pay it ten dollars per day for six days' use in loading and carrying said ties to St. Louis; that defendant's steamer was necessarily engaged three days in said service at a cost to defendant of two hundred and twenty-five dollars, in all amounting to $353.74, necessarily expended by defendant in recovering the lost ties, for which it prayed judgment.

For a second counter-claim it said that, in June, 1887, at rates set forth in account " B" at plaintiff's instance and request, it carried certain ties from Neeley's landing to St. Louis at price of ten cents per tie, and paid certain charges and towed certain barges for plaintiff, and that there is due therefor ninety-five dollars for which it prayed judgment.

A reply was filed denying the new matter set up in the answer.

The answer admitted the loss of the ties, and setting up the sole defense that the snag was an unavoidable danger of navigation, narrows the issue down as to whether defendant, or its agents or officers were guilty of negligence or want of reasonable care, forethought, skill or prudence in avoiding the snag.

The testimony in chief tended to show the delivery of the ties to the defendant, the contract price agreed upon for their transportation, the bill of lading, the failure of the company to deliver all the ties at the place of destination, and their market value, demand for payment and the failure of the company to make good the loss. There was also some evidence to the effect that the president of the company blamed the pilot in charge of the boat for the disaster. There was some correspondence between the parties, but as it is not material to the disposition of the case, we will not further notice it.

At the conclusion of the evidence in chief, the court gave an instruction that no recovery could be had against Martin Michael, but refused an instruction to that effect concerning the defendant company; of this ruling the defendant complains.

The testimony of the...

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