Dunn v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1878
• Citation: 68 Mo. 268
• Court: Missouri Supreme Court
• Parties: DUNN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

68 Mo. 268

DUNN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Shelby Circuit Court.--HON. JOHN T. REDD, Judge.

The following are the instructions referred to in the opinion of the court, as having been given by the court below on its own motion:

1. The court instructs the jury that under the contract sued on the defendant was bound to transport the mules from the town of Shelbina to the station at the city of St. Louis, and to deliver said mules to the plaintiff at said station; that by said contract plaintiff undertook to feed, water and take care of said mules during their transit, and that under said contract it was the duty of defendant to provide all the necessary means for transporting said mules with a reasonable degree of safety, and to provide plaintiff with such facilities to water, feed and take care of the mules as under the circumstances were reasonably requisite for that purpose; and if the jury find from the evidence that the mules were detained at Macon City on their way to St. Louis for want of means of transportation, and that the circumstances accompanying such detention were such as to make it necessary to avoid injury to the mules, that they should be removed from the cars, watered and fed; and if the jury further find that defendant, or its agents and employees neglected and failed to furnish the usual and customary facilities for that purpose; and if the jury further find that in consequence of such negligence and failure plaintiff's mules were injured, the jury ought to find the issue for plaintiff, and assess his damages at the actual amount of injury or damage sustained by plaintiff caused by such negligence, with interest thereon at the rate of six per cent. from the institution of this suit to the present time.

2. The court instructs the jury that although the jury may believe from the evidence that the mules were injured in value by reason of the fact that they were confined in defendant's cars at Macon City from the time of their arrival at said point until they were started from said point to St. Louis, and by reason of the condition of the weather during said period of time, and want of water and food, yet unless the jury further find from the evidence that such injury was caused by the failure of defendant, or its agents or employees, to use a reasonable degree of care to prevent such injury, they ought to find for the defendant.

3. That upon the issue as made by the pleadings in this cause, the defendant is not liable for any injury to the mules occurring after said mules left Macon City, if they sustained any such injury.

4. The defendant is not liable in this action for any injury that the mules, in consequence of any vicious propensities, may have inflicted on each other, unless such vicious propensities were excited by the negligence or want of proper care on the part of the defendant, or its employees, nor is defendant liable for any injury to said mules arising from the want of water or food, provided defendant, its agents or employees, used reasonable care to provide plaintiff with such facilities as may have been necessary to enable him to water and feed the mules.

The following are among the ten instructions referred to in the opinion of the court as having been offered by the defendant and refused by the court below:

1. Under the pleadings and evidence the plaintiff is not entitled to recover.

2. The contract read in evidence does not require the defendant, or any of its agents, to notify the connecting carrier of the fact that the defendant has live stock for transportation and delivery to such connecting carrier, and a failure to do so on its part is neither a breach of said contract nor of defendant's duty as a common carrier of live stock.

3. Under the contract read in evidence the defendant only undertook and agreed to carry the mules sued for, promptly and safely, and within a reasonable time, from Shelbina to the next connecting carrier on the line of its road to St. Louis, and there to safely, and within a reasonable time, deliver said mules to said carrier; and that the plaintiff should not be charged more than $58 per car for carrying said mules from Shelbina to St. Louis. If the jury believe from the evidence that the defendant, promptly and safely, and within a reasonable time after said mules were delivered to it at Shelbina, carried said mules from Shelbina to Macon City, and there delivered said mules to the St. Louis, Kansas City & Northern Railway Company, in good order and condition, within a reasonable time after the arrival of said mules at Macon City; that said St. Louis, Kansas City & Northern Railway Company was the next connecting carrier between the defendant's road at Macon City and St. Louis, then such carrying and delivery, and the payment of not exceeding $58 per car, is a full performance of the contract read in evidence, and they will find for defendant. And in this case there is no evidence that the plaintiff paid more than $58 per car for carrying said mules from Shelbina to St. Louis.

4. If the jury believe from the evidence that the defendant carried the mules sued for from Shelbina to Macon City, promptly and safely, and on time; that it delivered said mules to the St. Louis, Kansas City & Northern Railway Company at Macon City; that said St. Louis, Kansas City & Northern Railway Company received and shipped said mules on the first freight train on its road leaving Macon City for St. Louis; that said St. Louis, Kansas City & Northern Railway Company was the next connecting carrier between the defendant's railroad at Macon City and St. Louis, they will find for defendant; notwithstanding they may further believe from the evidence that said mules remained in the cars in which they were shipped from Shelbina to Macon City, twenty-two hours, awaiting the arrival of the train on the St. Louis, Kansas City & Northern Railway, in which they were shipped from Macon City to St. Louis, provided they shall further believe from the evidence that the plaintiff failed to notify defendant's conductor of the train which carried said mules, agent or yardmaster at Macon City, on the arrival of said mules, that he wanted said mules switched up to the chute at Macon City so that he could unload them, until after the engine pulling the train in which said mules were carried had left Macon City, and there was no other engine at Macon City with which defendant could have switched up said mules to said chute.

5. If the jury believe from the evidence that the plaintiff could have got the mules sued for unloaded at Macon City by the first freight train bound from Macon City to Moberly on the St. Louis, Kansas City & Northern Railway after the arrival of said mules at Macon City, and fed, watered and rested, and thereby have saved himself from all the damage which ensued to said mules after the arrival of said train at Macon City, by reason of their not being unloaded, fed, watered and rested, then it was the duty of the plaintiff to have unloaded, fed, watered and rested said mules, and in assessing the plaintiff's damages they will exclude all of said damages from their assessment.

6. If the jury believe from the evidence that James Dunn was a partner of the plaintiff in the mules sued for, then plaintiff is not entitled to recover in his name alone, and they will find for the defendant.

Geo. W. Easley for appellant.

Edwin Silver, Lay & Belch and Dunn, Anderson & Boulware for respondent.

NORTON, J.

This suit was instituted in the circuit court of Shelby county for the recovery of damages alleged to have been sustained on a shipment of forty mules in the cars of defendant.

The petition alleges that on the 20th day of January, 1873, plaintiff delivered to defendant at Shelbina, a station on her road, forty head of mules of the value of $5,000, to be shipped to St. Louis; that said mules were received, and defendant, in consideration of the sum of $116, to be paid by plaintiff, undertook to exercise and observe due and proper care in the carriage of said mules as a common carrier for hire, except so far as its duty as such was limited by the terms of a written contract entered into at the time the mules were delivered, which said agreement provided among other things, that the defendant should not be liable for any damages said property might sustain, except such as might occur by the negligence or misconduct of defendant, and that plaintiff should take care of, water and feed said stock while under transportation. It is further alleged that the train of defendant conveying said mules arrived at Macon City about seven o'clock in the evening of the day they were received, where they were to be turned over to the St. Louis, Kansas City & Northern Railway for further transportation to their destination; that plaintiff was on the train for the purpose of feeding, watering and taking care of his stock, and immediately after the arrival of said train at Macon City he learned that said mules would be retained a great length of time awaiting a train on said St. Louis, Kansas City & Northern Railway, and thereupon demanded of defendant's servants that the cars containing his mules should be placed on...