Ball v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 574
• Parties: BALL v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 574

BALL

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Carroll Circuit Court.--HON. J. M. DAVIS, Judge.

AFFIRMED.

George S. Grover and H. S. Priest for appellant.

(1) The contract being lawful, and under it the common law liability of defendant being limited, the burden of proof was upon plaintiff to establish negligence on the part of defendant. Rice v. K. P. Ry., 63 Mo. 314; Clark v. St. L., K. C. & N. Ry., 64 Mo. 440; Sturgeon v. Same, 65 Mo. 569; Oxley v. Same, 65 Mo. 629; Dawson v. Same, 76 Mo. 514; R. R. v. Cleary, 77 Mo. 634; Cragin v. N. C. R. R., 51 N. Y. 61; Penn v. B. & E. R. R., 49 N. Y. 204; L. C. & L. R. R. v. Hedger, 9 Bush. 645; Squire, et al., v. N. Y. C. R. R., 98 Mass. 239; A. R. Co. v. Brown, Reporter, Sept. 3d, 1884, p. 319; R. R. v. Spears, 66 Ga. 485. No negligence on defendant's part was shown, and therefore, plaintiff was not entitled to recover. There was no evidence to support the finding of the court. Sturgeon v. R. R., supra; Bankard v. B. & O. R. R., 34 Md. 197; L., C. & L. R. R. v. Hedger, supra; Lawson on Carriers, sec. 248. (2) Under the contract the damages were limited to the sum expended by plaintiff in purchase of food and water. It was, therefore, error for the court to render judgment in favor of the plaintiff for the full value of the animals. S. & N. Ala. R. R. v. Heinlein, 52 Ala. 606; Squire v. N. Y. C. R. R., supra; Graves v. R. R., 17 Reporter 623; Lawson on Carriers, sec. 20; Hart v. R. R., 7 Fed. Rep. 630; Harvey v. R. R., 74 Mo. 546.

Eads & Graham and Hale & Sons for respondent.

(1) The fact of delay in the transportation of the hogs being established, the law, in the absence of any reason therefor on the part of the defendant, will impute it to its negligence. Ketchum v. Express Co., 52 Mo. 390; Levering v. Union etc. Co., 42 Mo. 88; Reed v. R. R., 60 Mo. 206; Shriver v. R. R., 31 Amer. Dec. 353; 2 Greenleaf Ev. sec. 219. (2) Where there is, as in this case, a special contract--and a loss admitted--it devolves upon the defendant to show not only that the cause of the loss was within the exceptions in the contract, but also that there was no negligence upon the part of the defendant. Steel and Burgiss v. Townsend, 37 Ala. 247; 2 Greenleaf, sections 219, 222; Whiteside v. Russell, 42 Mo. 88; 8 Watts & Sergeant, p. 44; 3 Parson's Contracts, pages 692, 693, 694 and 695; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Burnell v. N. Y. Central R. R. Co., 45 N. Y. 185. (3) The doctrine that a common carrier cannot exempt himself from losses occasioned by a neglect of that degree of care which the law casts upon him in his character of carrier is well established. Levering v. Union Transportation Co., 42 Mo. 88; Wolff v. the American Express Co., 43 Mo. 421; Steele & Burgiss v. Townsend, 37 Ala. 247; Hill v. Sturgeon & Rawlings, 28 Mo. 323; Davidson v. Graham, 2 Ohio St. 131; Graham & Co. v. Davis & Co. 4 Ohio St. 362: Michael v. N. Y. Central R. R. Co., 30 N. Y. 564; School District v. Boston, Hartford & Erie R. R. Co., 102 Mass. 552; Pennsylvania R. R. Co. v. Butler, 57 Pa. 335.

EWING, C.

This suit was based upon a petition the material averments of which are as follows: First. That defendant was a corporation created under the laws of Missouri. Second. That defendant is a common carrier, and as such common carrier, on the 3d day of March, 1880, received of plaintiff, to be transported from South Carrollton, one car load of hogs to Metcalf, Moore & Company, consignees, National Stock Yards, East St. Louis, Illinois. Third. That in consideration that said car load of hogs was to be by defendant, safely, carefully, and as speedily as possible, transported to the point aforesaid, plaintiff then and there paid to defendant the sum of $45.00 per car. Fourth. That defendant failed to transport and deliver said car load of hogs, safely, carefully, and with as great dispatch as possible, pursuant to the terms of said agreement; but, on the contrary, said hogs were negligently and carelessly delayed at the city of St. Louis, Missouri, for the space of three hours by defendant, and the weather being extremely warm, said hogs, to the number of fourteen, averaging in weight 290 pounds, and in all 4,060 pounds, and worth in the market at that time $4.35 per hundred, were overcome by heat, suffocated and died. Fifth. That plaintiff realized from the sale of said dead hogs the sum of $57.30. Sixth. That plaintiff, in consequence of the carelessness, negligence and delay of defendant, as aforesaid, was and is damaged in the sum of $176.61, less the sum of $57.30, so obtained for the hogs, to-wit: the sum of $119.31, for which amount he asks judgment, with six per cent. interest thereon from the 4th of March, 1881.

The answer of defendant was as follows: For further answer defendant avers, that on the 3d of March, 1880, it entered into a special contract in writing, with plaintiff, which contract was then and there duly executed by the parties thereto, in the words and figures following, to-wit:

This agreement, made the 3d day of March, 1880, between the Wabash, St. Louis & Pacific Railway Company, party of the first part, and David Ball, witnesseth: That the party of the first part will, in consideration of the agreements herein contained, forward for the party of the second part, the following freight, to-wit: 45 cattle, 55 hogs, from Carrollton to East St. Louis, at the rate of $43.00 per car, which is a reduced rate, expressly agreed upon by the parties hereto, and in consideration of which rate the party of the second part stipulates and agrees, as follows:

1. The party of the second part agrees to take care of said freight while the same is being transported, and load and unload the same at his or their own risk and expense.

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4. It is agreed that the party of the first part shall not be responsible for any damage or injury sustained by any live stock from suffocation, while in said cars, or from any injury caused by overloading cars, or from fright of animals, or from the crowding of one upon or against the other.

5. It is agreed that the party of the first part shall not be responsible for any delay caused by storm, fire, failure of machinery or cars, or from obstruction of track from any cause, or for any injury caused by fire from any cause whatever.

6. The party of the second part, in consideration of the rate named in this contract, further agrees to water and feed said stock at his own or their risk and expense, while the same is in the cars of said first party, and in the event of any unusual delay or detention of said live stock, while on said trip, from any cause whatever, the party of the second part agrees to accept as full compensation for all loss or damage sustained in consequence of such delay, the amount actually expended by him, or them, in the purchase of food and water for the stock aforesaid.

7. Defendant says that in consideration of the covenants therein contained, it was expressly agreed in said special contract that it should not be responsible for any damage or injury sustained by said live stock by suffocation while in said cars, or for any injury caused by overloading cars, or from fright of animals, or from the crowding of one upon or against the other.

8. Defendant says that in consideration of the covenants therein contained, it was expressly agreed in said special contract that said plaintiff should water and feed said live stock at his own risk and expense, while the same was being transported over the railroad of defendant, and that in event of any unusual delay or detention of said live stock while on said trip, from any cause whatever, said plaintiff should accept as full compensation for all loss or damage sustained in consequence of such delay, the amount actually expended by him in the purchase of food and water for the stock aforesaid.

9. Defendant says, that in consideration of the covenants therein contained, it was expressly agreed in said special contract that plaintiff...