Phoenix Powder Manufacturing Co. v. The Wabash Railroad Company

Decision Date28 April 1903
Citation74 S.W. 492,101 Mo.App. 442
PartiesPHOENIX POWDER MANUFACTURING COMPANY, Appellant, v. THE WABASH RAILROAD COMPANY, Respondent
CourtMissouri Court of Appeals

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.

REVERSED AND REMANDED.

STATEMENT.

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:

"For other and further answer to the petition of plaintiff defendant says that, on or about the 30th day of March, 1901 in the city of St. Louis, Missouri, it entered into a certain written and printed special contract with the plaintiff wherein and whereby, in consideration of a certain reduced rate of freight, then and there given to the plaintiff by the defendant for the shipment hereinafter described, it undertook and agreed to transport to the end of its line only, certain property consigned and described as hereinafter set forth.

"That said special contract was in words and figures as follows, to-wit: (Here the bill of lading was pasted in the answer, but it need not be copied at length.)

"And defendant says that other than said special contract, as hereinbefore set forth, it did not undertake or agree, at any time or place, to transport for the plaintiff or any of its agents any species of property whatever from any point to any point and that it never did, at any time or place, undertake or agree to transport any species of property whatever, from any point to any point for the plaintiff, or any of its agents, as a common carrier.

"Further answering, defendant says that for and in consideration of the reduced rate of freight given to plaintiff as aforesaid, it was expressly agreed by and in said special contract that neither the defendant, nor any of its connecting lines, should be liable to the plaintiff for any loss or damage to said property occasioned by fire not caused by the negligence of defendant or by its connecting lines. . . .

"Further answering, defendant says that for and in consideration of the reduced rate of freight given to plaintiff as aforesaid, it was expressly agreed in said special contract that said property should be transported by the defendant and its connecting lines at the risk of the plaintiff.

"Further answering, defendant says that it kept and fully performed all the terms and conditions of said special contract. That at the time of the execution of said special contract, as now, as plaintiff well knew, the defendant's line of railway extended westwardly from the city of St. Louis, Missouri, in the direction of the State of Texas, terminating at Kansas City, Missouri.

"That defendant transported said property under said special contract as aforesaid, in due time, over its line of railway from the city of St. Louis to the end of its line of railway as aforesaid, and there delivered the same in good order to its connecting line, the Chicago, Rock Island & Pacific Railway Company.

"That said Chicago, Rock Island and Pacific Railway Company transported said property under said special contract over its line of railway in due time from Kansas City, Missouri, to Bowie, Texas, and there delivered the same, in good order, to its connecting line, the Fort Worth & Denver City Railway Company. That while said property was in the possession of said Fort Worth & Denver City Railway Company, at Bowie, Texas, as aforesaid, it was, accidentally, and without any fault on the part of said Fort Worth and Denver City Railway Company, destroyed by fire.

"Wherefore defendant says that plaintiff ought not to have or maintain this action, and having fully answered, prays to be discharged with its costs."

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:

"BILL OF LADING.

"March 30th, 1901.

"Received from the Phoenix Powder Manufacturing Company the following packages and numbered as per margin, to be transported by the said Wabash Railroad Company, and the forwarding lines with which it connects, until the same shall have reached the point named in the margin of this contract, on the following express terms and conditions, to-wit:

"First. The Wabash Railroad Company and forwarding lines with which it connects, and which may receive said property, shall not be liable for any damage occasioned by improper packing, or from the leakage or breakage of packages, or for any loss or damage occasioned by wet, dirt, fire or loss of weight, or for any loss, damage or delay of goods occasioned by the breaking down of bridges, or from the failure or breaking of machinery or cars, or from mob violence, strikes upon railroads, or among railroad employees, or from freshets, storms, or other providential causes. . . .

"Fourth. Consignees are to pay freight and charges upon goods, in lots or parts of lots, as they are delivered to them; but in case any goods are delivered without payment of charges, then said railroad company shall have a lien upon, and may retain all other goods of the same shipper, consignee or owner, in satisfaction of such arrearages, whether covered by this or any other bill of lading."

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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