Connelly v. Illinois Cent. Ry. Co.

• Decision Date: 20 October 1908
• Parties: CONNELLY v. ILLINOIS CENT. RY. CO. et al.
• Court: Missouri Court of Appeals

113 S.W. 233

133 Mo. App. 310

CONNELLY v. ILLINOIS CENT. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

October 20, 1908.

1. CARRIERS (§ 177)—CARRIAGE OF GOODS— CONNECTING CARRIERS—INJURIES TO GOODS —STATUTES—APPLICATION.

Rev. St. 1899, § 5222 (Ann. St. 1906, p. 2718), providing that, when shipments begin in Missouri, the initial carrier shall be liable for damages accruing anywhere on the route, does not apply to transportation of goods wholly without the state.

2. CARRIERS (§ 185)—CARRIAGE OF GOODS— CONNECTING CARRIERS—INJURIES TO GOODS.

When property is delivered to a carrier in good order to be transported over its line and that of one or more connecting carriers, and the property is damaged en route, proof that the goods were delivered to the owner at destination by the final carrier in bad order establishes a prima facie case against it.

3. CARRIERS (§ 177)—CARRIAGE OF GOODS— CONNECTING CARRIERS—LIABILITY OF INITIAL OR INTERMEDIATE CARRIER.

To make a case against an initial or intermediate carrier on its common-law liability, the owner must prove that the damage happened while the property was in such carrier's custody.

4. CARRIERS (§ 187)—CONNECTING CARRIERS— INITIAL CARRIER—INJURY TO GOODS—PRESUMPTIONS—INSTRUCTION.

Where, in an action against an initial carrier for injuries to goods, there was evidence justifying the submission of the question whether the injury occurred on such carrier's line to the jury, it was error to charge that, in the absence of evidence to the contrary, it would be presumed that any damage to the goods occurred while they were in the hands of the last carrier before the damage was discovered was erroneous, as conceding the possibility that there was no evidence that the loss occurred on the initial carrier's line.

5. EVIDENCE (§ 588) — WEIGHT AND SUFFICIENCY—CONCLUSIVENESS ON PARTY.

Plaintiff was not bound by the testimony of witnesses introduced by defendant, nor was the jury bound to believe them if their manner discredited them, or if the evidence as a whole supported a different inference.

6. CARRIERS (§ 136)—CARRIAGE OF GOODS— INJURIES TO GOODS — IMPROPER LOADING AND PACKING—QUESTION FOR JURY.

In an action against a carrier for injuries to goods, whether they were improperly loaded and packed held for the jury.

7. APPEAL AND ERROR (§ 1066)—REVIEW—REVERSIBLE ERROR—INSTRUCTIONS.

In an action for injuries to goods in transit, an instruction, not within the issues, that defendant would not be liable for any damages which occurred while the goods were stored in its warehouse prior to shipment, while erroneous, would not constitute reversible error.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Thomas L. Connelly against the Illinois Central Railway Company and others. From a judgment in favor of defendant Illinois Central Railway Company, plaintiff appeals. Reversed and remanded.

H. A. Loevy, for appellant. Samuel Mc-Pheeters, for respondents.

GOODE, J.

This cause was reviewed by us before on questions different from those now presented. A report of the former decision will be found in 120 Mo. App. 652, 97 S. W. 616, but it will help the reader to restate the principal facts. The action counts on the common-law liability of a carrier, and was brought to recover for damage done to appellant's household furniture while in transit from Jackson, Miss., to East St. Louis, Ill., over three railroad companies; the respondent the Illinois Central Company, the Southern Railroad Company, and the Mobile & Ohio Railroad Company. The goods were received by respondent company at Jackson, and loaded in one end of a freight car which contained in the other end 20 barrels of flour. The car doors were sealed, and the car carried by respondent to Winona, Miss., where it was turned over to the Southern Company, which carried it to West Point, Miss., and there, after considerable delay, turned it over to the Mobile & Ohio Company. The delay at West Point was due to the refusal of the agent of the Mobile & Ohio Company to receive the car, on account of the damaged condition of the goods, until an arrangement was made by which the Southern Company delivered the property to the Mobile & Ohio as in bad order. Because the goods were damaged before delivery to the Mobile & Ohio Company, the action, which was originally against the three railway companies, was dismissed as to it. On the second trial a verdict was returned in favor of respondent, and appellant brought the case here, complaining of instructions given by the court.

It will be observed the carriage of the goods was entirely outside this state, and hence was not affected by our statutes, providing that, when shipments begin in this state, the initial carrier shall be liable for damage occurring anywhere on the route. Rev. St. 1899, § 5222 (Ann. St. 1906, p. 2718); Crouch v. Railroad, 42 Mo. App. 248. The case was tried by both parties on the assumption that either defendant was liable only for whatever damage occurred while the goods were in its charge and on its own line. The instructions given at the request of appellant allowed a verdict against the Illinois Central Company in the event the jury found the furniture was in good order when loaded on said company's car, and, while it was in transit and before delivery to the Southern Company at Winona, it was broken or otherwise damaged. A counterpart of said instruction was granted at respondent's request, advising the jury it was not liable if the goods were delivered by it to the Southern Company at Winona in the same condition they were in when received for shipment at Jackson. But, at the request of respondent, the court also instructed that if the car was opened on June 26th between Winona, where the Southern Company received it, and West Point, to which said company carried it, and the goods were then in a damaged condition, and the goods on said date had...