G. G. Council v. St. Louis & San Francisco Railroad Company

• Decision Date: 04 March 1907
• Citation: 100 S.W. 57,123 Mo.App. 432
• Parties: G. G. COUNCIL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

100 S.W. 57

123 Mo.App. 432

G. G. COUNCIL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 4, 1907

January 14, 1907;

Appeal from Henry Circuit Court.--Hon. W. W. Graves, Judge.

AFFIRMED.

Judgment affirmed.

L. F Parker, John H. Lucas and Charles A. Calvird for appellant.

(1) The court erred in admitting evidence of G. G. Council, George W Jessop and T. A. Harris. The evidence relating to conversations with third parties; to matter not involved in the pleadings, and incompetent. Lester v. Railroad, 60 Mo. 267; King v. Railroad, 98 Mo. 240; Brooks v. Blackwell, 76 Mo. 310; Ritter v. Bank, 87 Mo. 575; Gorham v. Auerswald, 53 Mo.App. 134; Trust Co. v. Lumber Co., 118 Mo. 462. (2) The court erred in refusing to admit the testimony of B. N. Brown and C. E. Exline. This evidence was to show, by general repute the existence of cholera in the pavilion. Peniston v. Schlude, 171 Mo. 141; Drumm Co. v. Bank, 107 Mo.App. 436. (3) The court erred in giving instructions asked by plaintiff--(a) Enlarges the issues: Bank v. Armstrong, 62 Mo. 65; Christian v. Ins. Co., 143 Mo. 469; Haines v. Pearson, 100 Mo.App. 555; Johnson v. Bank, 102 Mo.App. 400; Wolfe v. Supreme Lodge, 160 Mo. 686; Minnier v. Railroad, 167 Mo. 114. (b) Assumes controverted facts, "cholera infections." Grayson v. Lynch, 163 U.S. 468; Day v. Railroad, 81 Mo.App. 484; Dean v. Woodenware Co., 106 Mo.App. 186; 1 Blashfield's Instructions, sec. 29; State v. Bonner, 178 Mo. 432; Heinzle v. Railroad, 182 Mo. 559; Veatch v. Norman, 109 Mo.App. 395; Link v. Westerman, 80 Mo.App. 596; May v. Crawford, 150 Mo. 528; Boothe v. Lay, 83 Mo.App. 607; Koenig v. Depot Co., 173 Mo. 724; Chitty v. Railroad, 148 Mo. 74. (c) Comment on evidence. State v. Rutherford, 152 Mo. 133; State v. Grogin, 147 Mo. 55; McFadin v. Catron, 120 Mo. 274; Shawhan v. Transit Co., 109 Mo.App. 233; Swink v. Anthony, 96 Mo.App. 426; Rothschild v. Ins. Co., 62 Mo. 361. (4) The court erred in refusing to give instructions asked by appellant, which were in accord with the pleadings and evidence, and ought to have been given. O'Donnell v. Patton, 117 Mo. 21; Havens v. Railroad, 155 Mo. 216; Hite v. Railroad, 130 Mo. 141; Estes v. Shoe Co., 155 Mo. 587; Schereth v. Railroad, 96 Mo. 515.

C. D. Corum, C. C. Dickinson and Parks & Son for respondent.

Submitted an argument.

OPINION

JOHNSON, J.

Action by a shipper of live stock against a common carrier to recover damages resulting from the alleged wrongful act of the carrier in knowingly and against the protest of the shipper exposing the animals during the transportation to a virulent disease from which fifteen of them sickened and died. The judgment was for plaintiff in the sum of $ 4,500 and defendant appealed.

On October 14, 1902, plaintiff, a breeder of fine hogs, shipped twenty-six head of thoroughbred Berkshire hogs from Williamsville, Illinois, to Kansas City for the purpose of placing them on exhibition at a fine stock show. The shipment was made over the Chicago & Alton Railroad and the bill of lading issued designated the "Fine Stock Pavilion, Kansas City, Missouri," as the place of delivery. This railroad runs to Kansas City, but has no tracks reaching the stockyards, the place where the show was to be held. The defendant company, which maintains and operates tracks into the stockyards received the car containing plaintiff's hogs from the initial carrier at Kansas City and undertook for a consideration to deliver it at the destination fixed in the shipping contract. The show grounds were situated on property of the stockyards company, but were detached from the pens and yards used in the regular business of that company. After receiving the car containing plaintiff's hogs defendant made up a train consisting of that car, another car of fine hogs and five cars of cattle. The cars of hogs were placed next the engine and the train was backed towards the stockyards. When it reached a point where the track divided into three branches it stopped for a few minutes. One of the tracks into which the main line separated went directly to the unloading platform at the fine stock pavilion and another went in a different direction to and by the hog pens used in the regular business of the Stockyards Company. Plaintiff and other owners of the fine hogs in the two cars knew of the presence of hog cholera and other virulent diseases in and about these hog pens and their unloading platforms and, learning that the trainmen purposed switching their cars into the infected district before delivering them at their place of delivery, protested to the person who appeared to be in charge of the movements of the train against this course, and informing him of the danger of exposing the hogs to these diseases asked him to deliver the two cars of hogs at the pavilion before proceeding with the other work in hand. This could have been done with little trouble, but the request was refused and the two cars were taken into the infected district and left standing there for more than half an hour. They were then run back to the junction and switched to their destination. The hogs were unloaded, placed on exhibition where they remained during the continuance of the show, after which they were reloaded, billed back to Williamsville over the same route and delivered to defendant. Again over the objections of plaintiff and the other shippers, defendant's employees switched the cars back into the infected district and permitted them to remain standing there a considerable time before they were moved to the yards of the Chicago & Alton Railroad. There was no necessity for either exposure, but the cars could have been handled to avoid coming into the zone of danger. On account of the value of the animals, great care had been observed by plaintiff in their shipment. The car used had not been employed before in the shipment of hogs and had been thoroughly disinfected. When the hogs arrived at Kansas City, they were in good health and apparently free from disease. Immediately after their return to Williamsville, plaintiff, fearing they had become diseased on account of their exposure, placed them in quarantine on his farm. Cholera or some other fatal disease appeared among them in a short time and resulted in the death of fifteen.

The foregoing facts are collected from the evidence introduced by plaintiff. Other facts material to the particular issues before us will appear in the discussion of the errors assigned. The petition embodies the facts above stated and the cause of action asserted is the wrongful act of knowingly exposing the property to unnecessary danger. The answer tenders the general issue and in addition contains the allegation, "that if the plaintiff suffered any loss at the time mentioned in the petition, which it denies, then it was on account of his own negligence in shipping his stock to the stockyards at Kansas City and was a risk assumed by him in so doing with knowledge of the conditions at the time."

First, we will dispose of objections made to the rulings of the learned trial judge in admitting and rejecting evidence offered. Plaintiff in testifying concerning the movement of the train into the stockyards said in part, "They switched us straight away down in the main stockyards; and I asked the man in charge--he had no uniform on; I knew him no more than the man in charge of the train; I suppose he was a brakeman, foreman or something; I didn't know in what capacity he was, only he was in charge of the train--where he was going to take us. He said they were going down in the yards to unload some stock. Q. Now what did they do then? A. I told them that I didn't want to go down in the stockyards with my hogs. Defendant objects to this conversation for the reason it is not shown to be with anybody in authority. Objection overruled and defendant excepted. Q. (Court) He said it was a man in charge of the train. A. I said that he should not take us down there and he paid no attention to what I said to him; and I says--talked as nice as I could to him--that he should not take us down there. I told him the yards were infected with disease and if he took us down there he would expose our hogs to disease," etc. The person in control of the movements of that train by whatever name he was called--conductor, foreman or yard boss--was the vice-principal of his master, the corporation, and notice to him was notice to the corporation. [Merchants' Bank v. Lovitt, 114 Mo. 519, 21 S.W. 825; 3 Clark and Marshall on Corporations, secs. 718, 719; Mechem on Agency, sec. 729.] It is urged, however, the statement that "he was the man in charge" is a mere conclusion and not the statement of a fact. A witness for plaintiff testified without objection that this conversation was held "with the man in charge of the train." Another witness that it was with "the man that was taking care of us and moving our car. Q. In charge of the train? A. Yes, sir." And another witness testified as follows:

"Q. Which one of the trainmen was it that he was talking to? A. I don't know, it was the fellow that seemed to be the boss, foreman or something--conductor." . . . Q. Did the man in charge when you talked to him, do you recollect whether or not he said what he was going down into there for? A. I think he said he had some switching to do down in there and they were going to do it to the best of their advantage."

A fundamental rule of evidence is that a witness must testify to facts in his own knowledge as distinguished from those that come to him by hearsay or from opinions and conclusions he reaches by a process of reasoning or conjecture from known facts and circumstances, which of themselves do not necessarily lead to the opinion or...