Atchison v. Chicago, Rock Island & Pacific Ry. Co.

• Citation: 80 Mo. 213
• Parties: ATCHISON v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 213

ATCHISON

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

M. A. Low for appellant, cited Batterson v. Railroad Co., 13 N. W. Rep. 508; Waldhier v. Railroad Co., 71 Mo. 514; Luckie v. Railroad Co., 67 Mo. 245; Edens v. Railroad Co., 72 Mo. 212; Price v. Railroad Co., 72 Mo. 414; Bullene v. Smith, 73 Mo. 151, 162; Harrison v. Railroad Co., 74 Mo. 369; Marquette, etc., R. R. Co. v. Marcott, 41 Mich. 433; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Manuel v. Railroad Co., 56 Iowa 655; Field v. Railroad Co., 76 Mo. 614.

T. J. Porter and Roland Hughes for respondent.

SHERWOOD, J.

The petition in this cause was the following:

Plaintiff states that defendant is a corporation, duly organized and operating under the laws of the State of Missouri; that defendant is a common carrier and running and operating a line of railway from Chicago, in the state of Illinois, through the State of Missouri and to the city of Leavenworth, in the state of Kansas; that as such common carrier, defendant agreed, for a reasonable consideration, to transport for plaintiff, on the 20th day of May, 1878, from Perrin, in Clinton county, Missouri, to Chicago, in the state of Illinois, two car loads of cattle, being live stock; that defendant, by its agents, servants and employes, negligently caused one load of said cattle to be loaded on and in a car which was defective and unsafe for the transfer of said cattle to their destination, so that said cattle had to be transferred and re-loaded; that defendant, its agents, servants and employes, so negligently transferred and re-loaded said cattle that by reason of the negligence of defendant, its agents, servants and employes, the said cattle were greatly damaged, to-wit, in the sum of $146.30; that said damage was caused by reason of the defendant, its agents, servants and employes, negligently furnishing and causing said cattle to be loaded on and in a defective and unsound car, and by reason of the negligence of defendant, its agents, servants and employes, in re-loading and transporting said cattle; wherefore plaintiff prays judgment, etc.

The answer was a general denial.

I.

Atchison, the party in whose name the contract for the transportation of the cattle was made, was the proper party to sue, and the petition sufficiently shows that he was the consignor. Who the owner was, was immaterial. Harvey v. Railroad Co., 74 Mo. 538.

II.

Testimony respecting the bedding of the car, was improperly admitted. There was no allegation in the petition which warranted the admission of such testimony. The inadmissibility of evidence of this character, plainly appears by comparing the allegations of the petition with the evidence respecting the bedding of the car. See authorities cited by defendant.

III.

Again, under the terms of the contract, the defendant was not liable for any things connected with the loading or unloading of the cattle; for that contract expressly stipulates: “And it is further agreed that said party of the second part is to load and...