Gashweiler v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1884
• Parties: GASHWEILER v. THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 112

GASHWEILER

v.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Randolph Circuit Court.--HON. GEO. H. BURCKHARTT, Judge.

REVERSED.

George B. Burnett and George S. Grover for appellant.

Under the pleadings and the evidence, plaintiff was not entitled to recover. It was not liable as a common carrier, for the transit was ended and the goods were safely stored before the fire. Angell on Carriers, sec. 304; Story on Bailments (9th Ed.), secs. 448 and 538; Thomas v. R. R., 10 Met. 472; Noway, &c. v. R. R., 1 Gray 263; Rice v. Hart, 118 Mass. 208; Holtzclaw v. Duff, 27 Mo. 394; Cramer v. Express Co., 56 Mo. 524. Nor was it liable as a warehouseman for hire by reason of its failure to provide a fire-proof building for storage. A warehouseman is not liable for losses by fire unless he has been guilty of ordinary negligence. Story on Bailments (9th Ed.), sec. 446; Francis v. R. R., 25 Ia. 60; Holtzclaw v. Duff, 27 Mo. 392. Under the contract read in evidence, defendant was not required to furnish a warehouse at all. It was one which as a warehouseman it could lawfully make. Story on Bailments (9th Ed.), secs. 32 and 79. The instructions given for plaintiff were based on an erroneous theory, while defendant's refused ones rightly declared the law.

U. S. Hall and J. Montgomery, Jr. for respondents.

(1) The liability of a railroad as a warehouseman after its liability as a common carrier ceases is that of a bailee for hire, and as such must furnish a building not only safe and secure against thieves, but also one which is not liable to be destroyed by fire or ordinary causes. Wharton on Negligence, sec. 573; 2 Redf. on Ry's, sec. 18; Whitney v. Railroad Co., 27 Wis. 342; Pike v. same, 40 Wis. 586; Nichols v. Smith, 115 Mass. 332; Lane v. Railroad Co., 112 Mass. 462; Barron v. Eldredge, 100 Mass. 459; N. A. R. R. Co. v. Campbell, 12 Ind. 59; C. R. I. & P. R. R. Co. v. Fairclough, 52 Ill. 108; Bartholomew v. Railroad Co., 53 Ill. 232; Wilson v. Railroad Co., 9 Am. and Eng. R. R. cases, 161; Cramer v. Am. M. & C., 56 Mo. 582. (2) The contract read in evidence cannot relieve the defendant from the liability for ordinary care as a warehouseman. This liability is one imposed upon it by law and it cannot escape it by any contract relieving it from this duty. Clark v. Railroad Co., 64 Mo. 447. See also: Rice v. Railroad, 63 Mo. 318; Levering v. Railroad, 42 Mo. 95; Snider v. Adams Ex. Co., 63 Mo. 383; Cantling v. Railroad, 54 Mo. 390; Sturgeon v. Railroad Co., 65 Mo. 572; Read v. Railroad Co., 60 Mo. 199; Ketchum v. A. M. U. Ex. Co., 52 Mo. 391; Holtzclaw v. Duff, 27 Mo. 395.

HENRY, J.

This suit was instituted to recover the value of a box and its contents shipped from San Francisco, California, to Moberly, Missouri. The petition contained two counts. The first charged defendant with a breach of duty, as a common carrier, in failing to notify plaintiff, or her agent, of the arrival of said box at Moberly, in failing to transport said box from St. Joseph, Missouri, to Moberly, and deliver the same, and its subsequent destruction by fire, at defendant's freight depot at Moberly.

The second count charged defendant with a breach of its duty, as a warehouseman, alleging that said box, after it reached Moberly, was stored by defendant in an unsafe, insufficient and highly inflammable building, to which fire was communicated by sparks and coals of fire which were negligently allowed to escape from an engine belonging to and operated by defendant.

The answer of defendant admitted that it was a common carrier, and received said box at St. Joseph from the Central Pacific Railroad, to be transported to Moberly; denied the other allegations of the petition, and specially pleaded the release and bill of lading, as hereinafter set forth, and that after safely transporting the box to Moberly, on the 1st day of April, 1881, in consequence of plaintiff's failure to call for and receive it, the box was placed in a safe, secure and suitable warehouse, where, without defendant's fault, it was on the 6th of April, 1881, destroyed by fire.

The following is appellant's statement, which respondent's counsel concedes to be fair in all particulars, except in the description of the depot building where the cases of goods were stored after they reached Moberly:

On the 7th day of March, 1881, the plaintiff shipped one case of household goods from San Francisco, California to Moberly, Missouri, prepaying the freight therefor ($13.50) for the entire distance. The contract of shipment was made with the Central Pacific Railroad Company. At the time of making such shipment plaintiff executed a release, wherein it was stated that in consideration of the transportation of said case of household goods at the usual and customary rates charged for goods of the same class, when the carriers are released from their extraordinary liability as such, the same being less than the current rates for the same class of freight shipped under the carrier's legal responsibility, said railroad company and its connecting lines were released from all liability to plaintiff, or to the owner of the property, for loss or injury to said goods while in transit, except such as might result from the negligence of the carrier. At the same time the Central Pacific Railroad Company executed and delivered to plaintiff a through bill of lading for the entire transportation of said case; which bill of lading contained, among others, the following conditions:

1. That the goods must be removed from the station during business hours on the day of their arrival, or be stored, at the owner's risk and expense, and in the event of their destruction or damage, from any cause, while in the depot, no damages should accrue therefor.

2. That the carriers should not be responsible for loss or damage to goods from fire, from any cause whatever, while in transit or at stations.

The case of goods was transported by the Central Pacific Railroad and its connecting lines to Kansas City, Missouri, and was there delivered to the defendant. It left Kansas City on the railroad of defendant on the 30th of March, 1881, and arrived at its destination, Moberly, Missouri, on the next day, March 31st, 1881. The owner was not there to receive it; consequently it was unloaded from the car on the day following, April 1st, and was stored in defendant's freight depot, where it remained uncalled for until April 6th, 1881, when the building and contents, including the case in question, were wholly destroyed by fire. Defendant's freight depot at Moberly was a wooden building, similar to other buildings of its class on all railroads. The roof was of shingles which were getting old, and were somewhat curled up at the ends. Oil had been stored in the building from time to time, in the usual course of business, and some of it had been spilled upon and saturated portions of the floor planks.

The building had been rebuilt in 1869, reshingled, painted, and put in thorough repair. It was in good condition at the time of the fire; was secure as to the weather or thieves, had good strong doors which were securely locked at night, and was carefully watched and tended by careful, prudent, and competent men in defendant's employ. At the time of this fire the locomotive engines of defendant were all in good order, manned and operated by careful, competent and experienced engineers, and supplied with all the best known, approved and modern appliances for the prevention of the escape of sparks and fire, and on said day such appliances were in perfect working order and were carefully handled and inspected by competent men employed by defendant for that purpose. The Missouri, Kansas & Texas Railroad, a railway line then operated separately and under an independent management, crossed defendant's tracks near the freight depot in question, and one of the engines of that company, then in bad order, threw sparks upon the building while passing it, which set it on fire and burned it down.

There was no conflict in the testimony, either as to the contract of shipment, which fact was admitted by plaintiff, the age and condition of the freight depot or warehouse, the condition of defendant's engines, their structure and careful inspection, nor that the building was burned by sparks falling on it from a defective M., K. & T. engine, then passing by it on the track of that company. There was a conflict in the testimony as to whether any notice was given of the arrival of the goods; Mr. Barrowman, defendant's freight agent at Moberly, testifying that he notified Mr. Lowell, plaintiff's cousin and agent at Moberly, on the 2nd or 3rd, and again on the 6th of April, of such arrival; while Mr. Lowell testified that no such notice was given him by Mr. Barrowman until the day of the fire, and just before it occurred. The market value of the articles lost was proven to be the sum of $296.55. The court admitted all evidence showing or tending to show the age, quality, and kind of material, its proximity to railroad tracks, and condition of defendant's freight depot, at the time of the fire, and to this ruling defendant excepted.

The following instructions were given in the case:

1. The jury are instructed that when the plaintiff did not, for any cause, demand and receive her goods after their arrival at Moberly, it then became and was the duty of defendant to store them in a reasonably safe warehouse, under the charge of competent and careful servants, ready to deliver them when called for; and in the selection of said warehouse, and the care and custody of said goods, the defendant was bound to use ordinary care and diligence, such as a prudent person would exercise in the care and control of his own property of a like nature, under similar circumstances, and such care should be in proportion to the injury or loss likely to be sustained by any omission of such care on his part. And if...