Davis v. Wabash

• Decision Date: 27 March 1883
• Citation: 13 Mo.App. 449
• Parties: SAMUEL C. DAVIS ET AL., Respondents, v. WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 449

SAMUEL C. DAVIS ET AL., Respondents,

v.WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 27, 1883.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

WILLIAM BROWN and BLODGETT & DICKSON, for the appellant: It thus appearing, from the plaintiffs' evidence, that the injury complained of was the result of the “act of God,” as the proximate cause, the defendant was entitled to a verdict.--2 Thomp. on Neg. 1227, note 2; Harris v. Packwood, 3 Taunt. 264; Beardslee v. Richardson. 11 Wend. 26; Browne v. Johnson, 29 Texas, 43; Larnt v. Railroad Co., 46 N. Y. 271; Jackson v. Railroad Co., 23 Cal. 268; Whart. on Neg., sects. 129, 661; Livzey v. Philadelphia, 64 Pa. St. 106. The court below improperly permitted the plaintiffs to introduce in rebuttal evidence which should have been introduced in chief.-- Babcock v. Babcock, 46 Mo. 247; 1 Greenl. on Ev., chap. 3, sect. 74; Chillicothe R. & B. Co. v. Jameson, 48 Ill. 281. In determining whether there was danger, the railroad company is held only to that degree of judgment which characterizes the ordinarily prudent man.-- Mascheck v. St. Louis R. Co., 3 Mo. App. 600; Washington Mutual Fire Ins. Co. v. St. Mary's Seminary, 52 Mo. 480; Peck v. Ritchey, 66 Mo. 121; Wolcott v. Heath, 78 Ill. 433; Straus v. Minzesheimer, 78 Ill. 492; Olson v. Upsahl, 69 Ill. 273; Roach v. The People, 77 Ill. 25; Wilson v. Bauman, 80 Ill. 493. The second instruction does not properly discriminate between the conclusions of law and inferences of fact which may be drawn from given facts, and was, therefore, misleading.-- The State v. Laurie, 1 Mo. App. 376; Clarke v. Kitchen, 52 Mo. 317; Young v. Ridenbaugh, 67 Mo. 384; Guardian Life Ins. Co. v. Hogan, 80 Ill. 35. In civil cases the law does not require a party “to establish” his case or defence by a clear or “fair” or any quality of preponderance of evidence. It is sufficient if the evidence preponderate ever so slightly in his favor.-- Dyer v. Bannock, 2 Mo. App. 432; Ellis v. McPike, 50 Mo. 575; Clarke v. Kitchen, 52 Mo. 317; Ruff v. Jarnett, 94 Ill. 475; Stratton v. Railway Co., 95 Ill. 25; Bitter v. Saathoff, 98 Ill. 266. If it appears in the evidence of plaintiffs that the injury resulted from an extraordinary flood, the burden remains on plaintiffs to show by a preponderance of evidence that such flood was a remote, rather than the proximate, cause.-- Gillespie v. Railway Co., 6 Mo. App. 558; Railroad Co. v. Reeves, 10 Wall. 176; Transportation Co. v. Donner, 11 Wall. 129; Wilson v. Railroad Co., 11 Reporter, 302. The evidence of plaintiffs shows that the goods were injured by a sudden, violent, and extraordinary flood; in such case no inference of negligence can be drawn from the fact of loss, and the burden is on the plaintiffs to prove it.-- Wilson v. S. P. R. Co., 11 Reporter, 302; Clark v. Barnwell, 12 How. 272; Scott v. London Dock Co., 3 Hurl. & Colt. 596. It is error to instruct the jury what any given evidence establishes, or to direct them to a consideration of a particular part of the evidence to the exclusion of others.-- Koenig v. Life Association, 3 Mo. App. 596; Chappel v. Allen, 38 Mo. 222; Raysdon v. Trumbo, 52 Mo. 38; Ellis v. McPike, 50 Mo. 575; First National Bank of Warsaw v. Currie, 44 Mo. 92; Iron Mountain Bank v. Armstrong, 62 Mo. 73; Ogden v. Kirby, 79 Ill. 555.

NOBLE & ORRICK, for the respondents: The instructions given by the court below declare the law most favorably for the appellant, upon all questions presented at the trial.-- Pruit v. Railroad Co., 62 Mo. 527; Vail v. Railroad Co., 63 Mo. 230; Wolf v. Express Co., 39 Mo. 421; Hill v. Shurgen, 28 Mo. 323. When the damage to respondents' goods in appellant's possession as a common carrier was proved, the burden was then on appellant to show that the damage was occasioned by a cause exempting it from liability.-- Wolf v. Express Co., 43 Mo. 421; Levering v. Insurance Co., 42 Mo. 88; Daggett v. Shaw, 3 Mo. 264; Reed v. Railroad Co., 60 Mo. 199.

BAKEWELL, J., delivered the opinion of the court.

Plaintiffs are co-partners, doing business in St. Louis. Defendant is a common carrier between Toledo and East St. Louis; and, together with the Lake Shore and New York, and Lake Erie and Western Railways, formed a line of connecting roads, over which the business of a fast freight transportation company called the South Shore Line, carried goods.

On February 5, 1881, this South Shore Line contracted with plaintiffs to transport for them from New York to East St. Louis, certain silks and other dry goods, valued at about $10,000. Under this agreement the South Shore Line received the goods; and, under its agreement with defendant, for its share of the freight money, delivered this merchandise to defendant at Toledo, on February 11, 1881, for transportation to East St. Louis over defendant's road. Defendant received this merchandise at the date named, in good order, and contracted with the South Shore Line and defendants to deliver the goods, in good order, and without delay, to plaintiffs. The merchandise arrived in St. Louis on February 23, 1881, in a damaged condition. As to these allegations of the petition, there is no serious contest. The petition further alleges, that the goods were damaged to the amount of $6,184.29 by the negligence of defendant. There was a general denial. The verdict and judgment were for plaintiffs, for the amount claimed.

There is no question that the goods were damaged whilst in defendant's possession; but defendant contends that this was caused by the act of God, for which they are not liable.

The evidence is voluminous, and is contradictory. That the goods were injured by water, after they were loaded into defendant's car in the transfer house at Toledo (at which place the Lake Shore road and the defendant exchange freight), owing to an extraordinary flood in the Maumee River at that point, is plain from the testimony of all the witnesses. We are not concerned with the weight of the evidence. If there is substantial evidence of negligence on the part of defendant directly contributing to the injury, it is quite immaterial that there is a great deal of testimony to the effect that, by no diligence, could defendant have foreseen or avoided the mischief.

There was evidence tending to show that the Lake Shore track and the track of defendant's road are separated at the transfer house in Toledo by a common platform. The house is long enough to accommodate sixteen cars. The house stands upon what is called the Middle Ground. The locality was once a swamp. The house is higher than houses in the vicinity, and is safe from any ordinary rise of the river.

The Maumee River at Toledo is almost at a level with Lake Erie, and has hardly any current. High winds from the lake raise the water. On February 11th, the water rose higher than it had ever been known to rise since 1867. The overflow was owing to the breaking of a gorge of ice, combined with a high wind from the lake. The winter had been unusually severe, and the lake was frozen out to a distance of six miles. The ice in the river was unusually thick. A thaw had set in early in February, accompanied by unusual rains. These rains caused a violent break-up. The ice began to move about the 8th. On the 9th the gorge moved, and there was another gorge. Great anxiety was felt in Toledo. Railroad men and merchants of experience went up the river to examine the gorge. Merchants were notified that one of the heaviest floods ever known in that locality was impending, and defendant notified persons in Toledo having freight in the freight houses of defendant, to remove their goods out of the reach of danger. This freight was in the Middle Ground, and was removed. The Lake Shore road employed an extra force of men, and removed from the Middle Ground all freight under its charge. Defendant also set to work removing freight, but it employed no extra force to do so. By moving the cars half a mile west, to higher ground, the freight would have been out of danger from the flood.

The goods of plaintiffs arrived at Toledo and were delivered to defendant early on the morning of the 11th. Early in the afternoon of that day, defendant receipted for these goods, and before eight o'clock in the evening they were all loaded into one of defendant's cars in the transfer house. The ordinary course of business was to send loaded cars to St. Louis by the six or nine o'clock evening trains. But the switch engine was on hand usually until eleven o'clock, to draw loaded cars out of the transfer house. The men working there usually quit work at eleven o'clock at night; and they did so on this occasion. There is evidence that, up to that time, there was no water in the transfer house that would have interfered with pulling out the cars. Nine cars had been loaded for defendant in the transfer house up to eleven o'clock. There was no switch engine on hand to pull them out. During the same period the Lake Shore road loaded eleven of its cars on the Middle Ground, and got them out before the flood came at midnight. The man who had charge of the transfer of merchandise for defendant, testifies that all the cars in the transfer house were loaded when he quit work at eleven; that there was no water there then; and that they could then have been pulled out by a switch engine; and that, at ten o'clock, he heard that the ice had broken and the flood was coming. No west-bound freight was moved after twelve o'clock of that day. The tracks west of the transfer house were clear when this man left. There was no engine waiting to pull out the cars when the men quit work. The switch engine usually came round for that purpose at six, or at seven, or when the men got through. The engines were usually on hand at eleven. If the orders had been given, the cars could have been pulled out on the high ground, out of danger.

This statement is not made as a fair summary of the three...