Davis v. Wabash, St. L. & P. R. Co.

• Decision Date: 21 June 1886
• Citation: 1 S.W. 327,89 Mo. 340
• Parties: DAVIS and others v. WABASH, ST. L. & P. R. CO.
• Court: Missouri Supreme Court

1 S.W. 327

89 Mo. 340

DAVIS and others v. WABASH, ST. L. & P. R. CO.

Supreme Court of Missouri.

June 21, 1886.

1. CARRIER — OF GOODS — DAMAGE TO GOODS.

The common carrier of goods for hire is liable, even without negligence on his part, for all damages except those resulting from the act of God or the public enemy.

2. SAME — BURDEN OF PROOF.

Upon the owner's proof of delivery to the carrier, and subsequent loss, the carrier must show the act of God or the public enemy; and, on showing this, the burden then shifts again to the owner, to show, if he can, that the act in question might, by the exercise of reasonable care, have been foreseen and provided against.

Appeal from St. Louis court of appeals.

Action to recover damages for injuries to plaintiffs' dry goods while in defendant's cars, resulting from an excessive flood. Judgment for plaintiff, and appeal therefrom by defendant.

Noble & Orrick, for respondents, Samuel C. Davis and others. Wells H. Blodgett, for appellant, Wabash, St. L. & P. R. Co.

RAY, J.

This action was begun by plaintiffs to recover damages sustained by their goods, consisting of silks and other valuable dry goods, while in defendant's possession as a common carrier. Upon a trial in the circuit court, plaintiffs had a verdict and judgment in their favor for $6,184.29, from which defendant appealed to the St. Louis court of appeals, where the same was affirmed, and defendant has appealed therefrom to this court.

The goods, when damaged, were in course of transportation from New York to East St. Louis, by the South Shore Line, which it appears did a "transportation business" over several connected railroads, including that of the defendant. The merchandise arrived at Toledo on the eleventh day of February, 1881, and the car, being in a crippled condition, was sent to the transfer-house, where the goods were unloaded and placed on the platform at 2:30 o'clock P. M. of said day, at which time the defendant gave its receipt for the goods to the connecting road. This transfer-house, it seems, is a place where freight going in both directions — east and west — is exchanged by numerous railroads connecting at Toledo; and, as also appears, freight thus passing through said exchange depot is, in the usual and ordinary course of business, subject to some necessary and unavoidable delay, occasioned by the switching, unloading, and transfer of the same from one railroad to another. By 8 o'clock P. M. of said February 11, 1881, the defendant had reloaded the goods from the platform of the transfer-house into one of its cars, preparatory to shipment of the same to East St. Louis, which car containing plaintiffs' goods was left, with other cars, standing at the platform waiting to be attached to defendant's train to St. Louis; which it seems would, in the ordinary course of business, leave Toledo about 10 or 11 o'clock that night, or would be switched with others, in the usual course of business, out of the transfer-house at or before 11 o'clock, at which hour the men usually quit work for the night. The evidence indicates pretty clearly, we think, that, in handling and taking the freight in its turn, (which was the duty of the carrier in the premises, in the absence of perishable qualities in the property, or other special circumstances, giving it preference,) the car in question could not have been gotten out, in the usual course of business, in time for the earlier train for St. Louis that night. The testimony of Rich and Stowe, who were sworn in plaintiffs' behalf, is, we think, substantially to this effect.

About midnight on said February 11th the waters from a flood in the Maumee river reached the railroad tracks at the transfer-house, and soon rose high enough to submerge and damage plaintiffs' dry goods while in said car at the platform awaiting shipment. The evidence offered in plaintiffs' behalf, as well as that for defendant, shows that the waters in which said goods were submerged, as charged in the petition, were the waters of an extraordinary flood occurring in the Maumee river. The character and magnitude of this flood is not called in question, but, on the contrary, is conceded to have been unprecedented, and such as is denominated an "act of God," properly so called. There is further evidence, also, offered by plaintiffs, tending, at least in some degree, to support the allegation in the petition that defendant negligently permitted the goods to be submerged. The evidence for plaintiffs in this behalf is not, perhaps, harmonious; indeed, it is, we think, conflicting and contradictory; but it is sufficient, we think, to meet the objection urged upon us with great earnestness, that there is no substantial evidence of negligence to go to the jury. A summary of this evidence, prepared by the court of appeals with special reference to this objection, will be found in the opinion of that court. 13 Mo. App. 449-454.

The evidence we deem of the most importance, and upon which, as the same is now preserved in the record, the liability of defendant, if any, mainly depends, we think, is that tending somewhat to show that defendant was informed and aware of the impending and approaching flood in time to have removed the goods of plaintiff to higher ground or place of safety; and that tending, in like manner, to show that it omitted, on the night of February 11th, after it was manifest that there would be an unusual flood and danger therefrom, to employ the force and means employed by other railroads and persons similarly situated at the time, to move or switch the car containing plaintiffs' goods to the higher ground, a half mile west of the transfer-house, where they would have been safe from the flood, and which, there is evidence tending to show, could have been done as late as 11 o'clock that night. It is not necessary to set out the substance of the testimony in defendant's behalf to the contrary. Reference will be made to its general scope in the further progress of this opinion. In this connection we may say, as is well said by that court: "We are not concerned with the weight of 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." But while this is so, such a state of the evidence makes, we think, the burden of proof a question of great importance in the case.

The second instruction given at plaintiffs' instance is as follows: "(2) If the jury believe that plaintiffs' goods were injured while in the possession of defendant as a common carrier for transportation, it is incumbent on the defendant to establish, by a fair preponderance of evidence, that the damage or loss was the result, immediately and proximately, of the `act of God.' Proof by plaintiffs of the damage and loss of the goods while in the possession of defendant, as aforesaid, makes a prima facie case of negligence or misconduct on the part of defendant, which must be overcome by proof that the injury was the result of an inevitable accident, or, in other words, an act of God, and not its own negligence or misconduct. If the preponderance of all the evidence does not establish that the direct, immediate, and efficient cause of the injury was an inevitable flood or inundation, the defendant is liable; and although the cause of the loss may have been an act of God, — such as a great flood in the Maumee river, — yet, if the defendant unnecessarily exposed the goods of plaintiffs to such peril by any culpable or negligent act or omission of its own, it is not excused."

The doctrine this instruction announces on this subject, as to the burden of proof, presents, we think, a serious difficulty in the case, and its propriety, in view of the evidence, and in connection with other instructions given in the cause, is the question we now propose to discuss briefly.

It is familiar doctrine that the law imposes upon the common carrier the obligation of safety as to goods while in his possession, and unless relieved from liability by the act of God, or the public enemy, he is responsible in damages although there may be no actual negligence on his part. Whenever the loss occurs from other causes, the law raises a presumption...