Gilbert v. Chicago, Rock Island & Pacific Railway Company
| Decision Date | 05 October 1908 |
| Citation | 112 S.W. 1002,132 Mo.App. 697 |
| Parties | HENRY A. GILBERT, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
Judgment affirmed.
Brown & Dolman for appellant.
(1) The evidence is insufficient to warrant a finding that the horse which died contracted pneumonia or that the other two who became sick contracted the fever as the result of any negligence on defendant's part. Railroad v Brosins, 105 S.W. 1131. (2) The burden of proof was upon the plaintiff to show not only that the defendant negligently failed to feed and water the horses and negligently failed to transport them within a reasonable time, but that such neglect caused the diseases from which the horses suffered or was the active cooperating cause. George v Railroad, 57 Mo.App. 358; Witting v. Railroad, 101 Mo. 631; Hurst v. Railroad, 117 Mo.App. 25. (3) The evidence is undisputed that the horses went through on the first and only trains scheduled or otherwise leaving each terminal station after the arrival of the horses, and that all trains arrived at each terminal station and at destination practically on time. "Mere delay standing alone is not sufficient to support a reasonable inference of negligence, which is a positive wrong and always must be proven affirmatively." Bushnell v. Railroad, 118 Mo.App 618.
Gabbert & Mitchell for respondent.
(1) The court committed no error in allowing the case to go to the jury on the ground that there was sufficient evidence to warrant a finding that the three horses arrived at Lincoln in a sick, weakened and unsound condition as the result of negligence of the defendant. Anderson v. Railroad, 93 Mo.App. 677; Bushnell v. Railroad, 118 Mo.App. 627; The Otis Co. v. Railroad, 112 Mo. 631; Lachner Bros. v. Express Co., 72 Mo.App. 13; Hamilton v. Railroad, 80 Mo.App. 600; Cash v. Railroad, 81 Mo.App. 113. (2) The burden is upon the defendant to explain its failure to unload the horses into the yards at Lincoln, from midnight until 10:30 a. m. and that the time said animals were in transit was not unreasonable. Sloop v. Railroad, 93 Mo.App. 609; Anderson v. Railroad, 93 Mo.App. 677; Lachner v. Express Co., 72 Mo.App. 19. (3) The contract pleaded by defendant was modified by the new contract made when the company accepted Gilbert's dollar and agreed for that special consideration to properly water and feed the horses at Jansen, Nebraska. The making of this new contract rendered the company liable for any injury to the horses caused by a failure to properly feed and water them. 101 Live Stock Co. v. Railroad, 100 Mo.App. 690.
Action by a shipper of live stock against a common carrier to recover damages for injuries to the property alleged to have been caused by the negligence of the carrier. On June 3, 1906, plaintiff delivered three horses to defendant at its station at Dearborn, Platte county, for shipment to Lincoln, Nebraska. He alleged in the petition that when the animals were delivered to defendant they were properly loaded in the car and were in a sound, healthy condition and that it became the duty of defendant to transport them to their destination within a reasonable time and "to properly care for and feed and take care of and to exercise all reasonable care and diligence for the preservation and the soundness and healthfulness of the said horses." Breach of this duty is charged in the following language: "That the defendant, on the contrary, failed to exercise due care and diligence in properly feeding, watering and taking care of said horses, and did carelessly and negligently fail to do and provide for said horses, and carelessly and negligently failed to feed and water said horses, and carelessly and negligently failed to transport them within a reasonable time; that, whereas, said horses should have arrived at Lincoln, Nebraska, under ordinary travel, at eleven a. m., June 4, 1906, they did not arrive at Lincoln, Nebraska, until ten a. m. June 5, 1906; that during all the time from the time they were received at Dearborn, Missouri, until they arrived at Lincoln, Nebraska, defendant carelessly and negligently, by and through its agents, servants and employees, failed to water and feed and care for said stock so that upon arrival at Lincoln of said stock, they had, on account of said carelessness and negligence of defendant, its servants, agents and employees, become sick and weakened and unsound to such an extent that one horse of the value of two hundred and fifty-seven dollars ($ 257) died in consequence of such careless and negligent treatment on the part of defendant; that one horse of the value of three hundred and fifty dollars ($ 350), the price and value of said horse when he was so placed upon the cars of the defendant at Dearborn, Missouri, so depreciated in value that he was worth only the sum of one hundred and fifty dollars ($ 150) when he arrived at Lincoln, Nebraska, in consequence of said careless and negligent treatment on the part of defendant; and one horse of the value of three hundred dollars ($ 300) . . . so depreciated in value that upon his arrival at Lincoln, Nebraska, he was only of the value of $ 150 on account of the careless and negligent treatment of said horse by defendant."
The answer of defendant, in addition to a general denial, interposed defenses founded on the terms of a written contract which, it is conceded, was entered into by the parties at the time the property was delivered for shipment. Among the provisions of this contract designed to limit the common law liability of the carrier, those chiefly relied on by defendant are the following:
Plaintiff testified that he loaded the horses in the car on Saturday morning, June 2, 1906, and delivered them to defendant in time for the car to be put in a train which left Dearborn at 9:35. The horses had been fed and watered that morning and were sound and in good health. They were saddle and harness horses and plaintiff was taking them to Lincoln to sell them at that place. He rode in the car to Rushville, where he left the train and proceeded to St. Joseph by passenger train. The horses reached defendant's yards at St. Joseph at about eleven o'clock that morning and remained there during the day. Plaintiff fed and watered them there and at eight o'clock that evening left for Lincoln on a passenger train, where he arrived about one o'clock that night. Early the next morning, he inquired of the agent of defendant at Lincoln if the horses had arrived and received a negative answer. At noon, he inquired again. We quote from his testimony: "
At four o'clock Sunday afternoon, one o'clock Monday morning and again at...
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