93 S.W. 849 (Mo.App. 1906), Pinkerton v. Missouri Pacific Railway Co.

Citation:93 S.W. 849, 117 Mo.App. 288
Opinion Judge:[117 Mo.App. 291] ELLISON, J.
Party Name:J. W. PINKERTON, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:R. T. Railey for appellant. Cole, Burnett & Moore for respondent.
Case Date:February 05, 1906
Court:Court of Appeals of Missouri
 
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Page 849

93 S.W. 849 (Mo.App. 1906)

117 Mo.App. 288

J. W. PINKERTON, Respondent,

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1906

Appeal from Barton Circuit Court.--Hon. H. C. Timmonds, Judge.

AFFIRMED.

Judgment affirmed.

R. T. Railey for appellant.

(1) The failure to ship the goods on the 23d was not the proximate cause of the injury complained of. The flood itself supervened and stood as the independent proximate cause of such injury. The court should therefore have given defendant's instructions numbered 2. Com. Co. v. Railway, 88 S.W. 117, 113 Mo.App. 544; Grier v. Railway, 108 Mo.App. 565; Herbert v. Wiggins F. Co., 107 Mo.App. 298; Fuller v. Railroad, 106 Mo.App. 394-5-6, l. c.; Saxton v. Railway, 98 Mo.App. 501, l. c.; Logan v. Railway, 96 Mo.App. 461; Atkinson v. Railway, 90 Mo.App. 489; Killian v. Railway, 86 Mo.App. 476; Kirkpatrick v. Railroad, 71 Mo.App. 267; Hicks v. Railway, 46 Mo.App. 304; Brown v. Railway, 20 Mo.App. 223; Haley v. Railway, 179 Mo. 30; Warner v. Railway, 178 Mo. 125; Henry v. Railway, 76 Mo. 288; 3 Elliott on Railroads, sec. 1264; Empire, etc., C. Co. v. Ry., 135 F. 135. (2) As stated by this court, as well as by several others, in discussing this question, there is no evidence tending to show that the defendant was guilty of negligence in failing to anticipate the direful results of the flood in controversy. There was nothing therefore to submit to the jury, as the facts contemplated in instruction numbered 3 were practically undisputed. Said instruction numbered 3 not only properly declared the law, but the court should have gone further, sustained our demurrer to the evidence and directed a verdict for defendant. Com. Co. v. Railway, 88 S.W. 117, 113 Mo.App. 544; Grier v. Railway, 108 Mo.App. 565; Empire, etc., v. Railway, 135 F. 135.

Cole, Burnett & Moore for respondent.

(1) Now, in considering appellant's contentions, we must not lose sight of the fact that plaintiff's amended petition charged negligence generally, and that plaintiff made his case, and rested, without disclosing an act of God. If goods are not delivered at their destination in a reasonable time, a prima facie case of default is made out; negligence need not be alleged, and if alleged it need not be proved. Davis v. Jacksonville Line, 126 Mo. 78; Doan v. Railway, 38 Mo.App. 410-413-414; Cramer v. Traction Co., 87 S.W. 27. (2) There was substantial evidence of negligence in plaintiff's prima facie case. Where goods are badly damaged or broken when delivered, that very fact tends to show great negligence on the part of the carriers, and the jury may so infer. Heck v. Railway, 51 Mo.App. 532; Flynn v. Railway, 43 Mo.App. 441-2; The Otis Co. v. Railway, 112 Mo. 631-2; Cash v. Railway, 81 Mo.App. 114; Livery Co. v. Railway, 105 Mo.App. 562. (3) It is the well settled law of this State that a demurrer to the evidence admits every fact which the jury might infer if it were before them, and if, taken as true, it makes out a case of actionable negligence the plaintiff is entitled to go to the jury notwithstanding the countervailing evidence of defendant. Moorman v. Railroad, 105 Mo.App. 715; Whitson v. Bank, 105 Mo.App. 617; Chinn v. Railway, 100 Mo.App. 583-4; Dodd v. Guiseffi, 100 Mo.App. 315; Boone v. Railway, 20...

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