Phoenix Powder Manufacturing Co. v. The Wabash Railroad Company
Decision Date | 28 April 1903 |
Citation | 74 S.W. 492,101 Mo.App. 442 |
Parties | PHOENIX POWDER MANUFACTURING COMPANY, Appellant, v. THE WABASH RAILROAD COMPANY, Respondent |
Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.
This action was instituted by the plaintiff corporation to recover the value of some blasting material, consisting of powder dynamite and fuse, received by the defendant railroad company at the city of St. Louis, March 30, 1901, for transportation to Twist Junction, Texas, there to be delivered to the consignee, the Stubbs Contracting Company.
The petition alleges the delivery of the articles to the defendant and the latter's agreement to safely carry them from St. Louis to Twist Junction and turn them over to the consignee in as good condition as when received; that in violation of its agreement and in disregard of its duty as a common carrier, the defendant failed and neglected to deliver the property at its destination, or anywhere else, to the Stubbs Contracting Company, and that it has been wholly lost to the plaintiff; that its value was $ 1,548.97, for which an ineffectual demand was made of the defendant, June 8, 1901.
The answer opens with a general denial of the allegations of the petition, and then pleads a special contract limiting the defendant's common-law liability, stipulating that neither the defendant nor any of its connecting lines should be answerable for loss or damage done to the property by fire, and containing other restrictions not important for present purposes.
These paragraphs are copied from the answer:
A replication was filed which denied the statements of the answer and averred that when the car containing the goods in question reached the city of Bowie, Texas, it was set out on a transfer track connecting the main tracks of the Rock Island and the Fort Worth & Denver Railway Companies and allowed to stand there for several days exposed to the risk of catching fire from fires built by tramps who infested the vicinity, and from the sparks of passing locomotives. Other acts of negligence in caring for and handling the car are charged, as a consequence of which it is alleged to have caught fire and its cargo to have exploded while on said transfer track.
From the testimony adduced at the trial, it appears that part of the carload of goods had been shipped to St. Louis from Phoenixville, Illinois, over the Illinois Central Railroad, whose freight charge was paid by the defendant at St. Louis when it received the shipment. The goods were carried safely by the defendant to Kansas City, there turned over to the Chicago, Rock Island & Pacific Railroad Company, carried by it to the city of Bowie, in Texas, and delivered to the Fort Worth & Denver City Railroad Company at that point for transportation over its route to their destination. The car reached Bowie about five o'clock in the morning of April 2d, and was placed on what is called the transfer track; that is to say, a connecting track over which goods were transferred from the line of the Rock Island Railroad Company to the line of the Ft. Worth and Denver Company, and vice versa.
There was testimony that a mistake occurred in the billing of the car, which we understand to mean there was an error in the waybill. For this reason it was not promptly transferred by the Rock Island to the Ft. Worth & Denver Company, but was delivered to and receipted for by the latter company on the third day of April. It continued to stand on the transfer track until between nine and ten o'clock in the forenoon of April 5th, and was among a string of five or six cars on that track. One of the cars next to it took fire that morning and the flames spread, with the result that the blasting material was destroyed by exploding. The transfer track was about a half-mile from the business part of Bowie and the locality was frequented by tramps who built fires in the vicinity and slept in empty box cars. Cars on the transfer track were also exposed to sparks emitted by passing locomotives, and on that track at the same time the powder car was there, was one loaded with hay, but testified to have been sealed. The powder and dynamite did not explode for nearly half an hour after the fire started and an effort was made to detach the car containing it from the one which took fire, but this could not be done.
In the receipt or bill of lading issued to the plaintiff by the defendant railroad company, certain enumerated exceptions to the ordinary liability of a common carrier were reserved in favor of the defendant and connecting lines as to the shipment in question; and as the merits of this controversy must be ascertained chiefly from the receipt, its material terms are set out:
The rate to be charged for the carriage is nowhere stated in the receipt, nor is the subject of the defendant's compensation alluded to, except in the fourth paragraph quoted above. The space in the printed form where the freight rate was usually inserted was, in this instance left blank and in point of...
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