Crow v. Bush

• Decision Date: 06 February 1918
• Docket Number: No. 2083.,2083.
• Citation: 200 S.W. 762
• Parties: CROW v. BUSH.
• Court: Missouri Court of Appeals

200 S.W. 762

CROW v. BUSH.

No. 2083.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by J. A. Crow against B. F. Bush, Receiver of the St. Louis, Iron Mountain & Southern Railway Company, a corporation.

From a judgment for plaintiff, defendant appeals. Affirmed.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant. A. T. Brewster, of Ironton, and W. A. Welker, of Poplar Bluff, for respondent.

BRADLEY, J.

On the 30th day of June, 1916, some time in the afternoon, plaintiff delivered to defendant at National Stockyards, Ill., 18 mares and 16 colts to be shipped to Neelyville, Mo. The car arrived at Neelyville in bad condition on July 2d, about 56 hours after delivery to defendant. Plaintiff brought suit to recover damages for injuries to the mares and colts, and upon trial before the court and a jury plaintiff recovered judgment for $360, and after unsuccessful motions for a new trial and in arrest, defendant appealed.

The mares and colts were on the afternoon of June 30th all loaded in the same car without partition so as to separate the mares from the colts. This car was carried to Dupo, Ill., a distance of 8 or 10 miles, and it was there discovered that some of the colts and perhaps some of the mares were down, and the car was shipped back to the National Stockyards, where it was unloaded, a partition put in, and the car reloaded, and shipped out again on the afternoon of July 1st. One colt was dead when the car returned from Dupo. The car arrived at Neelyville about 5 p. m. July 2d. At time of arrival of this car at destination one colt was practically dead, and was shot. Five other colts and one mare died in a few days from injuries received in transit. When the car arrived at Neelyville the partition was down or partly down at least, as the mares and colts were together.

Plaintiff bottoms his case upon negligence as follows: (1) Unreasonable delay; (2) negligently and carelessly loading the mares and colts in a car too short to accommodate them; (3) that the train in which the mares and colts were transported was negligently and carelessly operated, and this, together with the unreasonable delay, it is alleged caused the injuries complained of.

Defendant predicates error upon the action of the court in refusing its peremptory instruction. This assignment is bottomed upon the principle that, plaintiff having based his cause of action upon negligence, and not upon defendant's common-law liability as an insurer, the burden of proving the negligence alleged is upon plaintiff, and that he failed to sustain this burden by failing to make proof of any negligence alleged, and that therefore defendant's peremptory instruction should have been given. We agree that, where plaintiff, in the character of case here, grounds his cause upon negligence, the burden is upon him, but we do not agree that, when all the facts and circumstances here in evidence are taken together, there is no issue of negligence raised which may be submitted to the jury.

The evidence discloses that it was the duty of defendant to see that a partition, when necessary, was put in. The live stock agent of defendant at National Stockyards, testifying as a witness for defendant, said:

"There was no partition in the car when it was first shipped. It is the business of the Stockyards Company to put the partition in at the request of the live stock agent; it is not compulsory, but it is better to have it with mares and sucking colts. There was...