Grier v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Citation: 84 S.W. 158,108 Mo. App. 565
• Court: Court of Appeal of Missouri (US)
• Decision Date: 13 December 1904
• Parties: GRIER et al. v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 158

108 Mo. App. 565

GRIER et al. v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

CARRIERS — LOSS OF SHIPMENT — FLOOD — ACT OF GOD — NEGLIGENCE OF CARRIER — EVIDENCE — ACTION FOR CONVERSION — BURDEN OF PROOF.

1. In an action against a carrier by a shipper, in the nature of trover, the petition alleging merely the delivery of the shipment to the carrier, and a failure to deliver to the consignee, plaintiff had the task of proving no more; in order to make a prima facie case, than the delivery to the carrier, and failure to redeliver.

2. If negligence on the part of a carrier cooperates with an act of God in bringing about the loss of a shipment, the carrier is liable.

3. In an action by a shipper against a carrier to recover for the loss of a shipment destroyed by a flood, when the goods were in a car in defendant's yard, and the removal of the car to a place of safety was difficult, if not impossible, evidence that another carrier moved cars of freight out of such yard before the inundation was improperly received, in the absence of any showing that the carrier which removed its cars had no better facilities for removing them than defendant.

4. In an action against a carrier for loss of a car load of oats by a flood, held, that the facts did not show any negligence on the part of defendant contributing to the loss of the oats.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by Thomas A. Grier and others against the St. Louis Merchants' Bridge Terminal Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

McKeighan & Watts and Wm. R. Gentry, for appellant. Robert P. Grier, for respondents.

Opinion.

GOODE, J.

In June, 1903, there was a great inundation of the east bottom of the Mississippi river opposite the city of St. Louis, resulting in the destruction of much property. A car load of oats which the respondent had intrusted to the appellant for transportation to the city of St. Louis was lost in the flood. The oats were delivered to the appellant June 5, 1903, at 4:30 p. m., by another railroad company, over whose line they had been hauled, and the car containing them was immediately placed on the appellant's tracks in the town of Madison, opposite St. Louis. The bill of lading was issued about 9 o'clock that night, prior to which hour the destination of the oats was not communicated to the appellant. The car was stationed at a high point on the appellant's track — perhaps the highest in its yards. Many railroad lines cross the Mississippi river bottom in that vicinity. The ground traversed by them was protected from overflow by a massive embankment or dike, on which ran the Chicago & Alton Railway track. This embankment was from 20 to 80 feet wide on top, had withstood several high floods, and was the safeguard against the overflow of the country, depended on not only by railway companies, but by many manufacturing establishments and several considerable towns and their inhabitants. About 400 cars of freight remained in the appellant's Madison yards at the time of the flood, because its yards on the Missouri side of the river were congested with cars on account of the high water prevalent over a large part of the West, rendering it impossible to move them. Consequently there was no room in the Missouri yards to receive the cars from the Madison yards. The car of oats in question stood about a mile and half south of the Chicago & Alton embankment. Another obstacle to hauling the car promptly to St. Louis was that the Eads Bridge was cut off by the waters, and could not be used, and the appellant's bridge (Merchants' Bridge) was so crowded with passenger and mail trains, which ordinarily used the Eads Bridge, but were then forced to use the Merchants' Bridge, and with a construction train engaged in strengthening said bridge and its approaches, that freight trains could not be sent over it. At midnight, June 6th, the Merchants' Bridge was deemed unsafe, and traffic over it was stopped, and was not resumed until noon June 7th. For several days prior to the last date many citizens and railroad employés had been engaged in strengthening the Chicago & Alton embankment, but it gave way at 11 o'clock on Sunday morning, June 7th; and a deluge of water rushed through the crevasse with the force of a torrent, overflowing a large part of the bottom and destroying a great deal of property, including the respondents' oats. We gather that the water of the river never rose high enough to run over the top of the dike, and that the inundation would not have occurred, but for a crevasse forming. It was shown that the Mississippi and Missouri rivers — particularly the latter — were in flood over a large part of their course for days preceding the overflow at Madison, and that predictions were sent out by the United States Weather Office from day to day as to the stage to which the river would rise in the next 24 hours. These warnings showed the height of the flood at the points on the river above St. Louis, contained prognostications as to the danger to be apprehended at the latter point and in the lowlands opposite, and called attention to the importance of taking measures to avert loss of life and property. Though the answer is a general denial, the defense is that the loss of the car load of oats was due to the act of God, and therefore the appellant, as a common carrier, is not responsible for it. The petition stated a case in the nature of trover; averring merely the delivery of the oats to the appellant as a common carrier, and a failure on appellant's part to deliver them to the consignee. The main assignment of error is that the trial court refused to order a verdict for the appellant on the entire proof, and this is the only proposition we find it necessary to consider. The jury returned a verdict for the respondents, and an appeal was taken.

The form of action adopted by respondents imposed on them the task of proving no more, in order to make a prima facie case, than the delivery of the oats to the appellant company for carriage, and the failure of the appellant to redeliver them at destination to the consignee. This was done, and the burden then fell on the terminal company to acquit itself of responsibility by proof that the loss of the oats was due to a natural catastrophe, or, in legal parlance, an act of God. Davis v. Ry. Co., 89 Mo. 340, 1 S. W. 327. The proposition that the appellant company is not liable, even if it negligently permitted the oats to remain exposed to destruction by the flood after it knew there was danger of such a disaster, has been elaborately argued and briefed by counsel. We do not take that view of the law, and neither do the cases to which we are referred. If negligence on the part of the appellant co-operated with the violence of nature in bringing about the loss of the respondents' property, the appellant must answer in damages. Haney v. Kansas City, 94 Mo. 334, 4 S. W. 417; Brash v. St. Louis, 161 Mo. 433, 61 S. W. 808. It is only when an act of God, unmixed with proximate negligence on the part of the carrier, injures and destroys property in the latter's custody as carrier, that it is excused from answering to the owner. The cases cited and relied on by the appellant dealt with a state of facts in which, though the carrier was negligent in handling the property consigned to it, its negligence, which consisted in unreasonable delay in transporting the property to its destination, did not enter as a proximate cause into the loss of the property, which loss was due, legally speaking, solely to the act of God. Denny v. R. R., 13 Gray, 481, 74 Am. Dec. 645; Hoadley v. Transportation Co., 115 Mass. 304; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Long v. R. R., 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 1, 30 Am. St. Rep. 732; Herring v. R. R. (Va.) 45 S. E. 322; Slater v. R. R., 29 S. C. 96, 6 S. E. 936; Northwest Trans. Co. v. Ins. Co. (C. C.) 41 Fed. 793; Railway Co. v. Reeves, 10 Wall. (...