Drew v. Red Line Transit Co.

• Decision Date: 12 April 1877
• Citation: 3 Mo.App. 495
• Parties: FRANCIS A. DREW, Respondent, v. RED LINE TRANSIT COMPANY, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 495

FRANCIS A. DREW, Respondent,

v.RED LINE TRANSIT COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 12, 1877.

1. A common carrier may by contract restrict his liability as an insurer, but he cannot by contract change the rule of evidence as to the burden of proof of negligence.

2. Where goods are lost by a common carrier, whatever contract he may have made with the owner, the presumption of law is that they were lost by his fault, and unless this presumption be rebutted by testimony he must pay their value.

3. The duties of a common carrier do not originate in contract, and while acting as a common carrier he will be held to that degree of responsibility which the law imposes upon him as such, and will not be permitted to assume the position of an ordinary bailee or of a private carrier.

APPEAL from St. Louis Circuit Court.

Affirmed.

A. M. Gardner, for appellant, cited: Kirkland v. Dinsmore, 62 N. Y. 171; Parson v. Monteith, 13 Barb. 353; Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485; Ang. on Car., sec. 276; Story on Bail., secs. 410, 573; 2 Greenl. on Ev., sec. 218; Goldsby v. Pennsylvania R. R. Co., 30 Penn. 242; Cochran v. Dinsmore, 49 N. Y. 249; Owens v. Hannibal & St. Joseph R. R. Co., 58 Mo. 386; Ketchum v. American Merchants' Ex. Co., 52 Mo. 390; Read v. St. Louis, Kansas City & Northern Ry. Co., 60 Mo. 199.

H. I. D' Arcy, for respondent, cited: Wescott v. Fargo, 61 N. Y. 542; Empire Transp. Co. v. Wamsutta Oil Co., 63 Pa. St. 14; Knowlton v. Railroad Co., 19 Ohio St. 260; Michigan Southern & Northern Indiana R. R. Co. v. Henton, 37 Ind. 443; Railroad Co. v. Lockwood, 17 Wall. 357; Ketchum v. American Merchants' Union Ex. Co., 52 Mo. 390; Wiser v. Charless, 53 Mo. 547.

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

This was a suit originally commenced before a justice of the peace, on two separate causes of action. Plaintiff alleges that defendant was a common carrier for hire between New York and St. Louis; that defendant agreed to carry safely, and deliver to plaintiff at St. Louis, certain boxes of glass; that defendant so negligently carried said boxes of glass that they were broken and damaged to the extent of $36 as stated in one count, and to the extent of $24 as stated in the other.

There was a verdict and judgment for the plaintiff on trial anew in the Circuit Court, and defendant appeals.

The case was tried upon an agreed statement of facts, by which it was admitted that the goods were received by defendant in good order, and when delivered to plaintiff were damaged by breakage to the amount of $60; that defendant was a common carrier for hire, “and received the shipment for a valuable consideration as such common carrier, except in so far as said character of common carrier may be regarded by the court as affected by reason of the bills of lading and special freight contracts hereto annexed; that the shipments were made under bills of lading and special freight contracts, the forms of which, in blank, are hereto attached, and marked exhibits ‘A’ and ‘B.’ The original bills and contracts not being at hand, these blanks are to be taken and considered as though properly filled up and executed by the parties.”

Then follows a printed form of receipt or bill of lading, with blanks filled up, dated New York, September 16, 1874, receipting to Simon Burke & Co. for three boxes of glass, consigned and marked to F. A. Drew, St. Louis, in apparent good order, contents and value unknown. This bill of lading has many conditions printed upon it, among others, “It is agreed, and it is a part of the consideration of this contract, that this line will not be responsible for * * * breakage of glass or queensware, * * * or loss or damage to goods occasioned by providential causes, or by fire not caused by the negligence of the company while in transit or at stations.” “2nd class goods, 79 cents per 100 lbs.”

The other blank attached to the agreed statement is as follows:

“ Special Freight Contract, Red Line Transit Company,

Station_______, 187-,

In consideration of one dollar to me in hand paid by the Red Line Transit Company, the receipt whereof is hereby acknowledged, and in consideration of the said Red Line Transit Company receiving and carrying at tariff rates, and without extra charge, all freight consisting of____which may be delivered by me to said company from the _____day of_____, 187-, to the_____day of_____, 187-, which property, by reason of its size or weight or inherent qualities, or the manner in which it is packed or marked, or other peculiarity of said property, or of the circumstances under which it is received, is liable to extra hazards, it is agreed between the said company and the shipper thereof that the said company, and the railroads and boats with which they connect, and which receive such property, are hereby released from liability for loss occasioned by mob, riot, insurrection, or rebellion, and all damage incident to a time of war; also, from liability for leakage of all kind of liquors, shrinkage or deficiency in weight or measure of all grains or other property shipped in bulk, arising from any cause; breakage of all kinds of glass or crockery; carboys of acid or articles packed in glass; stoves and stove furniture, castings, machinery, carriage furniture, musical instruments of all kinds; packages of eggs; or for loss or damage on hay, hemp, cotton, or any article the bulk of which renders it necessary to be shipped in open cars; or for damage to perishable property of all kinds, occasioned by delay from any cause or change of weather; or for damage and loss while in the company's depots; from damage or loss on the sea, lakes, or rivers; also, from breakage or chafing, or damage or injury from fire or water, heat or cold, or collision; also, from the wrong carriage or wrong delivery of goods that are marked with initials, numbered, or imperfectly; or where the marks or directions on packages are made on paper or cards. And, in consideration aforesaid, I agree to indemnify and save harmless said company from any and all claims made by any consignee of any property for loss or damage thereto, arising from any of the causes aforesaid, while in the possession or under the control of said company.

RED LINE TRANSIT COMPANY,

By______, Station Agent,

[Signed in duplicate.] ____, Shipper, by ____, Agent.”

The court gave the following instructions asked by defendant:

“1. The court declares the law to be that, by the special contract in evidence in this case, the defendant's liability to the plaintiff is limited by the terms of said contract, and not by the law of common carriers; and the burden of proof is thrown upon the plaintiff to show that the breakage of the glass sued for was caused by the negligence or default of the defendant or its agents.

2. The court declares the law to be that, by the special agreement in evidence in this case, the defendant became

and was an ordinary bailee and private carrier for hire with reference to this particular shipment, and only liable as such; so that, to entitle the plaintiff to recover, it is incumbent on him to show that the glass in question was broken by the carelessness, negligence, or default of the defendant or its agents.”

And refused the following declarations of law asked by defendant:

“1. The court declares the law to be that, under the allegations contained in plaintiff's cause of action,...