84 S.W. 111 (Mo.App. 1906), Sloop v. Wabash Railroad Company

Citation:84 S.W. 111, 117 Mo.App. 204
Opinion Judge:BROADDUS, P. J.
Party Name:JOHN SLOOP, Respondent, v. WABASH RAILROAD COMPANY, Appellant
Attorney:Geo. S. Grover for appellant. Fogle & Saxbury for respondent.
Case Date:February 05, 1906
Court:Court of Appeals of Missouri
 
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84 S.W. 111 (Mo.App. 1906)

117 Mo.App. 204

JOHN SLOOP, Respondent,

v.

WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1906

December 19, 1904;

Appeal from Randolph Circuit Court.--Hon. Samuel Davis, Special Judge.

AFFIRMED.

Cause affirmed.

Geo. S. Grover for appellant.

(1) Upon the undisputed testimony, in this case, the plaintiff was not entitled to recover. Perry v. Railroad, 89 Mo.App. 49; Sloop v. Railroad, 93 Mo.App. 605. (2) The instructions given at the plaintiff's request were erroneous. Authorities cited, supra. (3) The instruction asked by defendant and refused, should have been given. Perry v. Railroad, 89 Mo.App. 49. (4) It would be a fraud on the defendant to permit the plaintiff to recover in this case, more than the values fixed by him. Brown v. Railroad, 18 Mo.App. 568; Wyrick v. Railroad, 74 Mo.App. 406; Kellerman v. Railroad, 136 Mo. 177; Hart v. Railroad, 112 U.S. 331; 3 R. S. U. S. 1901, pp. 3160-1.

Fogle & Saxbury for respondent.

(1) When a shipper delivers his stock to a common carrier it is the duty of the common carrier to transfer the same quickly, safely and diligently to the point of destination. Davis v. Railroad, 89 Mo. 340; Schwab v. The Union Lines, 13 Mo.App. 169; Falkner v. Railroad, 51 Mo.App. 311; Tucker v. Railroad, 50 Mo. 385; Hutchinson on Carriers, page 235 and note 1; Dawson v. Railroad, 79 Mo. 296. (2) To except the common carrier from its common-law liability there must be a special contract, and there must be a good consideration to support said contract or it is void. Kellerman v. Railroad, 136 Mo. 137; Wilson v. Railroad, 66 Mo.App. 392; Paddock v. Railroad, 60 Mo.App. 328; Duvenic v. Railroad, 57 Mo.App. 550; Conover v. Exp. Co., 40 Mo.App. 31; Crow v. Railroad, 57 Mo.App. 140; Rogan v. Railroad, 51 Mo.App. 665.

(3) Calling a freight rate a schedule rate, a reduced rate, or a tariff rate does not make it so. Browning v. Ry., 89 Mo.App. 325, 90 Mo.App. 333. (4) An inference of negligence on the part of the defendant is sufficient to let the case go to the jury. Whiting v. Railroad, 101 Mo. 641; Leonard v. Railroad, 54 Mo.App. 293; Blanchard v. Railroad, 60 Mo.App. 267; Clark v. Railroad, 39 Mo. 185, 90 Am. Dec. 458; Rankin v. Railroad, 55 Mo. 167; 4 Elliott on Railroads, sec. 1516.

OPINION

[117 Mo.App. 206] BROADDUS, P. J.

This cause was before this court on a former occasion and will be found reported in 93 Mo.App. 605.

Before this cause was tried anew in the circuit court plaintiff filed his third amended petition. The second amended petition upon which the case was formerly tried set out that on the 10th day of October, 1900, he delivered to defendant for shipment fifty-two head

Page 112

of fat cattle which defendant agreed, for certain charges to it paid, to safely and quickly transport and deliver to plaintiff's agent in Chicago, Ill.; that if said cattle had been...

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