Eckles v. Missouri Pacific Railway Co.

• Decision Date: 18 April 1905
• Citation: 87 S.W. 99,112 Mo.App. 240
• Parties: ECKLES, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

87 S.W. 99

112 Mo.App. 240

ECKLES, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 18, 1905

Appeal from St. Louis City Circuit Court.--Hon. Franklin Ferriss Judge.

AFFIRMED.

STATEMENT.

The material averments of the petition, on which the case was tried are as follows: Defendant owned and operated a railroad running from South Omaha, Nebraska, to Pueblo, Colorado where it connects with other lines of railroad running from said point to the city of Los Angeles, California. Defendant is a common carrier of goods from South Omaha to Pueblo and by itself and over roads connecting with it at Pueblo, on to Los Angeles. On the fourteenth day of November, 1890 plaintiffs purchased of Swift & Company one thousand seven hundred and fifty-six pieces of meat, known to the trade as sweet pickled bellies, at twelve hundred dollars, and requested Swift & Company to ship the meat to Los Angeles and pay the freight thereon. Swift & Company, in pursuance of said instructions, made a contract in writing (filed with the petition) by which defendant agreed to transport the goods to Los Angeles for three hundred and fifty dollars, which were then and there paid to the defendant. The defendant agreed to transport the goods over its own road to Pueblo, from Pueblo to Trinidad over the Denver & Rio Grande Railroad, and from Trinidad over the Atchison, Topeka & Santa Fe Railroad to Los Angeles. The goods were loaded into a refrigerator car in good condition; the car iced and delivered to defendant at South Omaha, on the fourteenth day of November, 1890, and on the fifteenth day of November, 1890, Swift & Company drew a draft on plaintiff for the price of the goods, plus the freight, amounting in all to fifteen hundred and fifty-five dollars, which plaintiff paid. The goods reached Pueblo over defendant's road, on the seventeenth day of November 1890, and reached Trinidad on the eighteenth of November, but the defendant wholly failed and refused to transport the goods farther than Trinidad or to deliver or cause them to be delivered to the Atchison, Topeka & Santa Fe Railroad Company, or any other carrier at that point for transportation, and for a period of fourteen days failed to forward the goods from Trinidad to Los Angeles. After a lapse of fourteen days defendant caused the goods to be transported by a connecting carrier, other than the Atchison, Topeka & Santa Fe Railroad, and they reached Los Angeles on the fifteenth day of December, 1890. During the fourteen days delay in forwarding the goods from Trinidad, defendant neglected to ice the car in which the goods were shipped and when they arrived at Los Angeles the meat was spoiled, soured and tainted and was sold for soap grease for the sum of eighty-six dollars.

The answer admitted the receipt of the meat from Swift & Company and the making of the contract in writing with said company, which was filed with the petition as an exhibit, but denied that the contract imposed upon defendant the duty of transporting the meat beyond Pueblo, the western terminus of its line, or of forwarding it by way of other lines of railway to its destination, and alleged the performance of its duty under the contract by transporting the goods to Pueblo in good condition and on time, and by delivering them to the Denver & Rio Grande Railroad, a connecting carrier. So much of the contract for the carriage of the goods as is material to the issues is as follows:

"Form 1132.

"THE MISSOURI PACIFIC RAILWAY.

"South Omaha, Neb., Nov. 14, 1890.

"Received from Swift & Company, the following packages, contents unknown, in apparent good order, marked and numbered as per margin, to be transported from South Omaha to Los Angeles, Calif., and delivered to the consignee, or a connecting common carrier. The packages aforesaid may pass through the custody of several carriers before reaching their destination, and it is understood as a part of the consideration, for which said packages are received, that the exceptions from liability made by such carriers respectively shall operate in the carriage by them respectively of said packages, as though herein inserted at length; and especially that neither of said carriers, or either or any of them, or this company shall be liable for leakage of any kinds of liquids, . . or for damages to personal property of any kind, occasioned from delays, from any cause, or change of weather, or for loss or damage by fire, or for loss or damage on seas, lakes, canals, or rivers. And it is further especially understood, that for all loss or damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier only in whose custody the said packages may actually be at the time of the happening thereof--it being understood that

The Missouri Pacific Railway Company,

in receiving the said packages to be forwarded as aforesaid, assume no other responsibility for their safety or safe carriage than may be incurred on its own road. All goods carried by this company are charged at actual gross weight, excepting such articles as are provided for in our general tariff. . . .

"Notice.--This contract is accomplished and the liability of the companies as common carriers thereunder, terminates on the arrival of the goods or property at the station or depot of delivery, and the companies will be liable as warehousemen only thereafter, and unless removed by the consignee from the station or depot of delivery within twenty-four hours of their said arrival they may be removed and stored by the companies at owner's expense and risk.

"Notice.--In accepting this contract, the shipper or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations and conditions.

"Consigned to Order, Swift & Company.

Notify Robert Eckles Company.

"At Los Angeles, Calif.

LIST OF ARTICLES WEIGHT.

Rates Guaranteed. A. R. T. Car No. 5461

$ 1.75 per 100 lbs. 1756 Pcs. S. P. Bellies 20,000

Freight Prepaired, 350.00.

"Reice In Transit If Necessary.

Care of D. & R. G. R. R. at Pueblo.

Care of A. T. & S. F. R. R. at Trinidad. Colo.

"(Signed) J. M. GALLIGHER, Agt. J."

The evidence shows that the shipment was solicited by Daniel King, contracting agent for the Missouri routing. The evidence also tends to show that the car in which the meat was shipped arrived at Pueblo in good order and on time, and that the meat was then in good condition; that it was promptly delivered to the Denver & Rio Grande Railroad, by which it was hauled to Trinidad and placed on a connecting line between the Denver & Rio Grande and the Atchison, Topeka & Santa Fe Railroad Companies, on November nineteenth, and by the latter road taken into its yards, a transfer sheet delivered to its agent without objection, and two hundred dollars tendered to pay the freight, which tender was refused on the claim that the road was entitled to the same rate as from Missouri river points. The evidence further tends to show that there was no traffic arrangement between the Missouri Pacific Railroad Company and the Atchison, Topeka & Santa Fe Railroad Company to receive transcontinental freight at Trinidad for less than the local rate ($ 1.30 per hundred pounds) but there was a traffic arrangement between the two roads that transcontinental freight received by the Missouri Pacific should be delivered to the Atchison, Topeka & Santa Fe at Kansas City, the through rate from Kansas City to Los Angeles being $ 1.75 per hundred pounds. On learning that the Atchison, Topeka & Santa Fe Railroad would not haul the goods from Trinidad for two hundred dollars, the Denver & Rio Grande Railroad Company hauled the car back to Pueblo and from there rerouted it over other connecting lines to Los Angeles, where it arrived on December 15, 1890. The car was immediately opened on its arrival and the meat found to be sour and tainted, and being unfit for any other purpose was sold for soap grease, for the sum of eighty-five dollars. The car was not re-iced at Pueblo but was found well iced when it arrived at Los Angeles; when or by what road it was re-iced does not appear from the evidence.

The defendant asked the court to declare the law as follows, which the court refused:

"1. The court declares the law to be, that under the pleadings and evidence in this case plaintiffs are not entitled to recover and the finding will be for the defendant.

"2. The court declares the law to be, that if the court believes from the evidence that the meat in controversy was safely carried by defendant and delivered to the Denver & Rio Grande Railway Company at Pueblo, Colorado, in good condition, within a reasonable time after its delivery to defendant by Swift & Company at South Omaha, Nebraska, then plaintiffs are not entitled to recover and the finding will be for the defendant.

"3. The court declares the law to be, that defendant is not liable under the contract of shipment sued on herein and read in evidence for any damage to the meat in controversy, by delay or failure to re-ice occurring on any other railroad than the one operated by it; and if the court sitting as a jury finds from the evidence that defendant transported the meat in controversy from South Omaha, Nebraska, to Pueblo, Colorado, without unreasonable delay, and delivered said meat to the Denver & Rio Grande Railway Company at Pueblo, Colorado, within the time usually and reasonably required for such transportation and delivery, then the defendant is not liable in this case, notwithstanding said meat may have been delayed or not properly re-iced on connecting lines, and the finding will be for the defendant."

The issues, by agreement of parties, were submitted to the court without...