Elam v. St. Louis & S. F. R. Co.

• Decision Date: 05 March 1906
• Citation: 93 S.W. 851,117 Mo. App. 453
• Court: Missouri Court of Appeals
• Parties: ELAM et al. v. ST. LOUIS & S. F. R. CO.

93 S.W. 851

117 Mo. App. 453

ELAM et al. v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

Rehearing Denied April 2, 1906.

1. CARRIERS—DESTRUCTION OF GOODS—PROXIMATE CAUSE.

Delay of a carrier in transporting goods, whereby they come in the path of a flood, and are destroyed by the act of God, is not a proximate cause of their injury.

2. SAME—BURDEN OF PROOF.

While a shipper makes out a prima facie case by proof of delivery of goods to a carrier in good condition and the carrier's failure to deliver them in like condition, the carrier meets this by showing their destruction by the act of God, and then the shipper must show any concurrent negligence of the carrier.

3. SAME — NEGLIGENCE OF CARRIER — EVIDENCE.

Evidence in an action by a shipper against a carrier for destruction by a flood of goods shipped, that on the afternoon before the flood struck the yards where the goods were, the water had risen considerably and had reached lower lands, is insufficient to authorize a finding of negligence of the carrier.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by N. B. Elam and another, copartners, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs. Defendant appeals. Reversed.

L. F. Parker and Woodruff & Mann, for appellant. Cole, Burnett & Moore, for respondents.

JOHNSON, J.

Action against a common carrier brought by the consignees and owners of certain merchandise to recover damages for injury thereto, alleged to have been caused by the negligence of defendant. Plaintiffs had judgment and defendant appealed.

Plaintiffs, retail merchants in Lamar, purchased the goods of a wholesale concern in St. Joseph. The latter made two shipments of them, both over the line of the St. Joseph & Grand Island Railroad Company. The first was delivered to the carrier at St. Joseph in the afternoon of May 26, 1903, and the second two days later. The line of this carrier terminates at Kansas City and from there the goods when shipped were routed over defendant's road to their destination. The petition is in two counts, one for each shipment; and the negligence charged with respect to the first shipment is, "that by the default and miscarriage of the defendant and by reason of its unreasonable delays and its careless and negligent handling of said goods it failed to deliver said goods to plaintiffs in good order, but on or about the 25th day of July, 1903, defendant delivered said goods at Lamar" so damaged and spoiled that their value was less than the freight charges upon them. The allegations relating to the second shipment are the same excepting as to the date of delivery, which was July 5, 1903. The defense is that the goods were damaged not by any negligence of defendant, but by the act of God, that is, they were caught in the extraordinary flood of 1903 that wrought such havoc in the bottoms of the Missouri and Kansas rivers at Kansas City. At the conclusion of the evidence, defendant requested the giving of a peremptory instruction in its favor, which the court refused and the issues of fact submitted to the jury very clearly appear in this extract from the instructions given: "And, if you shall further believe from the evidence that said goods were destroyed or damaged while in the possession of defendant, and that they were so destroyed or damaged by reason of negligence on the part of defendant, then your verdict should be in favor of the plaintiffs. But, if you shall believe from the evidence that said goods were so destroyed or damaged by reason of a sudden and extraordinary flood after coming into the possession of the defendant at Kansas City (if they did so come into its possession), your verdict should be in favor of the defendant unless you shall further believe from the evidence that defendant became aware of the impending and approaching flood in time to have removed the goods to a place of safety by the exercise of ordinary care and diligence. If you shall believe from the evidence that the defendant did become aware of the impending and approaching flood, if there was one, in time to remove them to a place of safety by the exercise of ordinary care and diligence, then the flood does not excuse it, and your verdict should be for the plaintiffs."

Defendant's contention is that there is no evidence in the record accusing it of negligence: that all of the evidence points to the act of God as the proximate cause of the injury and therefore the case should not have gone to the jury. We think it is fairly inferable from the facts appearing in the evidence introduced by plaintiffs that both shipments of goods were in the possession of defendant for carriage to their destination during Saturday, May 30th, and thereafter;...