Smith v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 08 May 1905
• Parties: SMITH v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

87 S.W. 9

112 Mo. App. 610.

SMITH v. CHICAGO, R. I. & P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 8, 1905.

CARRIERS — EXEMPTION FROM LIABILITY — VALIDITY — SCOPE AND EFFECT — NOTICE OF CLAIM FOR DAMAGES.

1. A contract by a shipper, in consideration of a reduced rate, exempting a carrier from liability by failure to deliver stock in time for the market of a certain day, is reasonable and enforceable.

2. A contract by a shipper of livestock exempting a carrier from liability for failure to deliver stock promptly does not cover a negligent delay.

3. Where a shipment of hogs arrived at the city of destination at 8 o'clock a. m. on a very warm day, failure of the railroad company to deliver them at the pens until 3 o'clock p. m. was gross negligence, for which the company was liable, notwithstanding a provision in the contract of shipment that, in consideration of a reduced rate, there should be no liability for delay in shipment.

4. Where a contract for shipment of livestock provided that any claim for damages should be presented to the carrier within one day after delivery of the stock at destination, and before the injured stock was mingled with other stock, the giving of such notice was a prerequisite to a right to recover for injuries to the stock.

5. A provision in a contract for the shipment of hogs that as a condition precedent to the recovery of damages for any loss or injury, the shipper must give written notice of a claim within a certain time, required notice of a claim arising from the death or shrinkage of the hogs through delay in delivery, and for damages from a fall in the market during such delay.

Appeal from Circuit Court, Mercer County; Paris C. Stepp, Judge.

Action by John D. Smith against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

M. A. Low, Orton & Orton, and Harber & Knight, for appellant. Robinson & Woods, for respondent.

BROADDUS, P. J.

Plaintiff shipped over defendant's road on the 4th of August, 1903, a car load of hogs from Millgrove, Mo., to Kansas City, Mo. They were loaded at 8 o'clock p. m., and arrived at their destination at about 8 o'clock a. m. of the next day, but were not moved to the stockyards until 1 o'clock p. m. of the same day. The hogs were shipped under a special contract, in which it was agreed that the rate of shipment was less than the usual rate. It was set out in this contract that: "The live stock covered by this contract is not to be transferred within any specified time nor delivered at destination at any particular hour. nor in season for any particular market." And further: "That first party [the defendant] shall be exempt from liability for loss or damage arising from derailments, collisions, fire, escapement from cars, heat, suffocation, overloading, crowding, maiming, or other accidents or causes not arising from the negligence of the first party." And it was provided in case of loss that: "As a condition precedent to any damages, or any loss or injury to live stock covered by this contract, the second party [plaintiff] will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party at the destination * * * and before such stock is mingled with other stock; such written notification to be served within one day after delivery of stock at destination; * * * that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims." The evidence showed that when the hogs arrived at Kansas City, at 8 o'clock a. m., they were in good condition; but...