Dawson v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 514
• Parties: DAWSON v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 514

DAWSON

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Wells H. Blodgett for appellant.

Contracts like the one in question are both wise and lawful, and when made should be upheld and enforced. Rice v. R'y Co., 63 Mo. 314; Clark v. R'y Co., 64 Mo. 440; Sturgeon v. R'y Co., 65 Mo. 569; Oxley v. R'y Co., 65 Mo. 629; Harvey v. R. R. Co., 74 Mo. 538; Pleas v. St. L., K. C. & N. R'y Co., (not yet reported); Angell on Carriers, (2 Ed.) § 54, p. 56; Hutchinson on Carriers, § 237, p. 189; Story on Bailments, (9 Ed.) § 549, p. 527; Schouler on Bailments, (1 Ed.) p. 463; Bankard v. R. R. Co., 34 Md. 197; s. c., 6 Am. Rep. 321; R. R. Co. v. Hedger, 9 Bush 645; R. R. Co. v. McDonough, 21 Mich. 165; R. R. Co. v. Henlein, 52 Ala. 606; s. c., 23 Am. Rep. 578; R. R. Co. v. Perkins, 25 Mich. 329; s. c., 12 Am. Rep. 275. The plaintiff having signed the contract in question, and accompanied the cattle to takec are of them, the burden was on him to show that whatever injuries his cattle sustained were occasioned by defendant's negligence, and having wholly failed to show negligence, and having, also, failed to prove any fact from which negligence could be inferred, the jury should have been told that under the pleadings and evidence the plaintiff was not entitled to recover. Sturgeon v. R'y Co., 65 Mo. 570; Clark v. R'y Co., 64 Mo. 448; L. C. & L. R. R. Co. v. Hedger, 9 Bush (Ky.) 645; s. c., 15 Am. Rep. 740.

Forrist & Fry for respondent.

It is well settled that common carriers cannot contract against their own negligence, and the jury have found the damages to be the result of defendant's carelessness. If plaintiff cannot recover because he agreed to report his claim within five days in writing and failed to do so, then defendant will be allowed to contract indirectly against its negligence. Such a provision is only for the convenience of the company, and is separate and distinct from the original undertaking, which the law compels defendant as a common carrier to perform, whether the contract is signed by the shipper or not, and a breach of the side agreement cannot deprive plaintiff of his right of action upon the common law liability of the carrier.

NORTON, J.

This suit was instituted in the circuit court of Audrain county, to recover damages alleged to have been sustained by plaintiff by reason of the negligence of defendant in transporting cattle from Centralia to St. Louis, which had been committed to defendant as a common carrier for transportation. The answer of defendant, after denying negligence, set up that the cattle were shipped under a special contract, which, among other things, provided that plaintiff was to take care of said cattle while being transported, and was to load and unload the same at his own risk and expense * * and that “any claim for damages under said contract shall be made in writing to the general freight agent of the party of the first part within five days from and after the live stock shall have been unloaded or delivered at the point of destination.” On the trial of the cause plaintiff obtained judgment, from which defendant...