Atchison, T. & S. F. Ry. Co. v. Madden, Sykes & Co.

• Decision Date: 01 June 1907
• Parties: ATCHISON, T. & S. F. RY. CO. v. MADDEN, SYKES & CO.
• Court: Texas Court of Appeals

103 S.W. 1193

ATCHISON, T. & S. F. RY. CO. v. MADDEN, SYKES & CO.

Court of Civil Appeals of Texas.

June 1, 1907.

Rehearing Denied June 29, 1907.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by Madden, Sykes & Co. against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. W. Terry, A. H. Culwell, and Garnett & Eldridge, for appellants. Davis & Thomason, for appellee.

CONNER, C. J.

Appellees instituted this suit in the district court to recover the value of certain merchandise alleged to have been shipped from Chicago over the line of appellant's road, and destined to Ardmore, Ind. T., and which, it was alleged, had never been delivered. Appellant answered by general demurrer, general denial, and specially that, if said goods were delivered to appellant and thereafter lost, the loss was not occasioned by its negligence, but said goods had been injured and destroyed in a flood of the Kaw and Missouri rivers at Kansas City, Mo which submerged the cars in which the goods were contained; that this flood was unexpected and unprecedented, and an act of God that could not have been provided against. There was a trial before a jury, which resulted in a verdict and judgment in favor of appellees for the sum of $1,105, from which judgment this appeal has been prosecuted.

The evidence shows that appellees' merchandise was delivered to appellant, as alleged, and by appellant transported from Chicago as far as Kansas City. The cars in which the merchandise was shipped were placed by appellant in its yards at the last-named city. The first car arrived at 3:15 p. m. on May 28, 1903; the second car arrived at 3:15 a. m. of the 29th day of said May; and the third car arrived at Kansas City at 8:15 p. m. of May 29th. The flood had been growing since about the middle of May, and on the night of May 29th the Kaw river got out of its banks, and the flood reached its height May 31st and June 1st, when it attained a stage of from 12 to 16 feet over appellant's yards at Kansas City, and appellees' goods were thereby rendered substantially worthless. On the night of May 29th appellant had all of its west-bound business made up into trains with engines attached and crews on duty, ready to depart from its yards, when it was ascertained that the water had overflowed the track at Holiday, Kan., which is west of Kansas City, to such an extent that trains could not pass through. The crews were thereupon released, and the engines sent to the engine house. On May 30th appellant, with all the means at its command, began to move the cars in its yards to higher ground, and continued to so do until the water put out the fire in its engines and stopped them from working.

The officer in charge of the United States Weather Bureau at Kansas City testified that he issued daily bulletins containing gauge readings at points on the Missouri river, with comments on anticipated flood in the shape of warnings; that the bulletins were published to newspapers and the public generally, and were issued from May 26th until after the flood subsided; that on May 30 and 31, 1903, very few reports were sent out by mail, because of the fact that telegraphic facilities for gathering news had been greatly impaired and train service was crippled. On May 26th the following warning was issued: "Owing to the frequent heavy rains in the Kaw and middle Missouri valleys, the rivers will continue rising at Kansas City. Should the rains keep up a few days longer the danger line will be reached at Kansas City." On May 27th the following warning was issued: "The great volume of water resulting from recent storms between Kansas City and Sioux City, and in the Kaw valley, has raised the Missouri beyond the danger line at Kansas City; the reading at 7 a. m. being 21.7, while Sioux City and Omaha report falling stages. Reports of very high water in the Kaw river, added to a prospect of more rain in this section within the next 24 hours, suggest that interests affected by high water should be closely guarded." On May 29, 1903, the following warning was issued: "The Missouri river stage 23.3 feet at Kansas City this morning, 2.3 above danger line. Excessive rains for past 24 hours in Kaw valley, and light to moderate rains throughout basin. Both Missouri and Kaw rivers will continue rising. The flood in Kaw may become very serious with our additional rains. Liable to fall to-day and to-night. It may go 2 or 3 feet higher within the next 36 hours." This witness further testified that no estimate had been placed on the ultimate height that the flood would reach, but that it reached the "danger line" on May 28th; the stage on that morning measuring 21.7 feet. It appears that appellant's line of road extends up the Kaw river to Topeka, some...