Botts v. St. Louis & H. Ry. Co.

• Decision Date: 08 June 1915
• Docket Number: No. 13860.,13860.
• Citation: 191 Mo, App. 676,177 S.W. 746
• Parties: BOTTS et al. v. ST. LOUIS & H. RY. CO.
• Court: Missouri Court of Appeals

177 S.W. 746

191 Mo, App. 676

BOTTS et al. v. ST. LOUIS & H. RY. CO.

No. 13860.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Rehearing Denied June 22, 1915.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by J. A. Botts and others against the St. Louis & Hannibal Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Fry & Rodgers, of Mexico, Mo., and J. D. Hostetter, of Bowling Green, for appellant. W. W. Botts, of Mexico, Mo., and Fauntleroy, Cullen & Hay, of St. Louis, for respondents.

NORTONI, J.

This is a suit for damages accrued on account of the loss of several hogs in transit through the alleged negligence of defendant, a common carrier. Plaintiffs recovered, and defendant prosecutes the appeal. Since the appeal was perfected plaintiff Trimble departed this life, and the case as to his interests now stands revived in the name of his executrix.

It appears that on March 21, 1907, plaintiffs Botts and Trimble, as copartners, consigned at Perry, Mo., the shipment of 83 fat hogs over defendant's line to Gilmore, Mo., there to be delivered to the Wabash Railroad Company, a connecting carrier, for transportation to East St. Louis, Ill. The shipment was delayed some in transit over defendant's line, but this is unimportant. Thirteen of the hogs were found to be dead on the following morning, and the suit proceeds on the grounds of negligence for such loss. Both defendant St. Louis & Hannibal Railway Company and the Wabash Railroad Company were sued in the first instance as connecting carriers, but at the trial the court directed a verdict for the Wabash Railroad arid submitted the case to the jury against the present defendant alone. In so far as this defendant is concerned the transaction involves an intrastate shipment only from Perry to Gilmore, Mo., where delivery was made to the Wabash.

The evidence is the hogs were loaded in a car on defendant's line at Perry, Mo., about 1 o'clock in the afternoon, and were transported by it from thence to Oakwood, near Hannibal on its line, where the car was set out to await the regular stock train later in the evening. About 5 o'clock defendant's regular stock train No. 7 picked up the car load of hogs at Oakwood, and 12 of them were found to be dead at that time. The weather was warm though in the month of March, for it appears the thermometer ranged on that day between 69 and 93 degrees, and it appears the car was wet, the hogs having been furnished water by defendant during the while. It is argued there is no evidence of negligence on the part of defendant. It is true there is no pointed and direct evidence of particular acts of such, but the situation presented is extraordinary in that it is unusual for so many hogs to die out of the total number of 83 in the car. There is evidence by stockmen to the effect that if the car had been kept moving rather than standing so long at Oakwood in the heat, such fatalities would not have occurred. Negligence may be inferred from circumstances attending the case, and direct evidence to that effect is not essential. It appears the hogs were all healthy and in good condition when loaded at Perry at 1 o'clock in the afternoon; and, in view of this, the evidence appears to be sufficient to make a prima facie showing of negligence on the part of defendant for that in the ordinary course of events so large a number of hogs in good condition would not die in transit during so short a time if due care were exercised on the part of the carrier.

In the case of inanimate freight, the common carrier is an insurer, and the duty devolves upon him to deliver the goods intact at the point of destination, but there is an exception to this rule with respect to the shipment of live stock, which arises because of the inherent vice or propensities of the animals. Because of this exception it is essential to show a state of facts or circumstances from which negligent conduct may be inferred on the part of the carrier in order to affix liability against it. But, as before said, it is not essential to show positive acts of negligence, and the circumstances attending the shipment may be such as to afford a fair inference of dereliction of duty on the carrier's part. In this view it has heretofore been said by this court, in the case of a shipment of poultry, that where it appeared the poultry was delivered to the carrier in good condition, and after a comparatively short run delivered to the consignee with a large percentage of it dead, and that such death rate in shipments of like character was so extraordinary that its parallel could not be shown, the shipper made out a prima facie case of negligent conduct on the part of the carrier so as to cast the burden of proof upon it. See Hance v. Pacific Express Co., 48 Mo. App. 179. So, too, the Kansas City Court of Appeals declared in the case of a shipment of 24 horses which were delivered to the carrier in good condition at Kansas City, and 19 of them were found to be bruised on the following morning upon arrival at St. Louis, two of which subsequently died, such facts alone would suffice as a prima facie showing of negligence against the carrier, so as to place the onus upon it of exculpating itself from fault. It was sell that the jury might infer from these facts that the horses were injured as a result of negligent conduct on the part of the carrier, and not from their own vicious propensities. See Cash v. Wabash R. R. Co., 81 Mo. App. 109. See, also, Libby v. St. Louis, I. M. & S. R. Co., 137 Mo. App. 276, 117 S. W. 659.

The evidence, as before stated, is that all of the hogs were in a healthy, sound condition when delivered into defendant's care at Perry, Mo., about 1 o'clock in the afternoon, and that at 5 o'clock on the same afternoon 12 of them were found to be dead in the car standing on the track at Oakwood, 30 miles distant. Experienced stockmen testified without objection that such was an unparalleled death rate in the shipment of like hogs in that locality, and in this respect the condition revealed was extraordinary. There is evidence that the hogs had been watered during the time and permitted to stand in a wet car during the heat of the afternoon, which was excessive for the time of year; and, in view of all these facts and circumstances, it may not be said as a matter of law that there is nothing in the case from which the jury might infer...