Botts v. St. Louis & Hannibal Railway Co.

• Decision Date: 08 June 1915
• Citation: 177 S.W. 746,191 Mo.App. 676
• Parties: J. A. BOTTS et al., Respondents, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

177 S.W. 746

191 Mo.App. 676

J. A. BOTTS et al., Respondents, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 8, 1915

Appeal from Audrain Circuit Court.--Hon. James D. Barrett, Judge.

AFFIRMED.

Judgment affirmed.

Fry & Rodgers and J. D. Hostetter for appellant.

(1) It is well settled that where a shipper sues two or more carriers under the provisions of Sec. 5446, R. S. 1909, he can only recover from the carrier through whose negligence the loss or damage occurred. Crockett v. Railroad, 147 Mo.App. 347; Wilburn v. Railroad, 148 Mo.App 692. It will be noted in this case that the shipping contract read in evidence provided expressly that the defendant, the St. Louis & Hannibal Railroad Company only contracted and agreed to carry the shipment to the end of its line, to-wit Gilmore, Missouri, and there to deliver the same to the Wabash Railroad Company. This it had a perfect right to do. Western Sash & Door Co. v. Railroad, 177 Mo. 641; Jones v. Railroad, 115 Mo.App. 232; McLendon v Railroad, 199 Mo.App. 128; Bank v. Railroad, 72 Mo.App. 82; McCann v. Eddy, 133 Mo. 59. (2) The court erred in refusing to give effect to the seven days' notice clause in the shipping contract. This provision has been upheld by our courts. Bellows v. Railroad, 94 S.W. 577.

Fauntleroy, Cullen & Hay for respondents.

This is a shipment wholly within the State. The contract does not specify any rate, but recites that the stock was shipped at tariff rates, and, under the rule applied to shipments wholly within this State, there is no consideration to support the agreement to give notice and such a clause is void. Libby v. Railroad, 137 Mo.App. 287; Burgher v. Railroad, 139 Mo.App. 70; Johnson Grain Co. v. Railroad, 177 Mo.App. 198; Holland v. Railroad, 139 Mo.App. 720; Creel v. Railroad, 137 Mo.App. 31; Ficklin v. Railroad, 117 Mo.App. 225; Leas v. Railroad, 157 Mo.App. 461.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

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 stand revived in the name of his executrix.

It appears that on March 21, 1907, plaintiffs Botts and Trimble as copartners, consigned at Perry, Missouri, the shipment of eighty-three fat hogs over defendant's line to Gilmore, Missouri, there to be delivered to the Wabash Railroad Company, a connecting carrier, for transportation to East St. Louis, Illinois. 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 and 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, Missouri, where delivery was made to the Wabash.

The evidence is, the hogs were loaded in a car on defendant's line at Perry, Missouri, about one 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 five o'clock defendant's regular stock train number 7 picked up the carload of hogs at Oakwood and twelve 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 sixty-nine and ninety-three 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 eighty-three in the car. There is evidence by stock men 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 one 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 the poultry 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 twenty-four horses, which were delivered to the carrier in good condition at Kansas City, and nineteen 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 said 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, Missouri, about one o'clock in the afternoon, and that, at five o'clock on the same afternoon, twelve of them were found to be dead in the car standing on the track at Oakwood, thirty miles distant. Experienced stock men 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. While 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, yet, in view of all the 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 negligent conduct on the part of defendant. No explanation is offered in defendant's evidence to exculpate it, save that it attributes the loss to the extreme heat which then prevailed; but obviously it should have exercised care with respect to that...