Gratiot Street Warehouse Company v. Missouri, Kansas & Texas Railway Company
| Decision Date | 30 April 1907 |
| Parties | GRATIOT STREET WAREHOUSE COMPANY, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
AFFIRMED.
STATEMENT.--The suit is for the value of a carload of corn, which, while under contract of affreightment, was damaged and practically destroyed by means of the high water resulting from the overflow of the Mississippi river, June, 1903. The material facts are: plaintiff a dealer in and shipper of grain, having an order for a car of corn from a customer in Texas delivered the laden car to the Wiggins Ferry Company for the purpose of delivering the same to the defendant railroad company on June 3, 1903, received from the ferry company a receipt therefor, and on the same date, June 3, at about one o'clock, p. m., the plaintiff delivered this receipt to the defendant's proper agent at and in charge of its commercial office, Broadway and Chestnut streets, St. Louis and contracted with the defendant, through said agent, for the shipment of the car, shipper's order, consigning same to itself (the plaintiff) at Wichita Falls, Texas, with directions to notify E. G. Rall, he being the plaintiff's customer for such corn, at which time defendant's commercial agent, upon the surrender by plaintiff to him of the Wiggins Ferry Company's receipt evidencing the car then in the ferry company's custody, issued in duplicate two bills of lading therefor, the original of which was delivered to plaintiff and the copy retained by defendant's said agent. The bill of lading then issued and delivered to plaintiff and under which the car was shipped, is dated June 3, 1903, and covers fifty-six thousand pounds bulk corn then contained in this car marked M., K. & T. R. R., No. 11747, and provides for its carriage over defendant's and connecting lines to Wichita Falls, Texas, at the rate of 22 1/2 cents per hundredweight. As said before, the shipment was made by the plaintiff to itself, it being both consignor and consignee, marked "Shipper's order, notify E. G. Rall." The bill of lading introduced in evidence bears the stamp of the defendant's transit inspection bureau, June 3, 1903, and among other things, contains the following provisions. "It is understood as a part of the conditions under which said packages are received, that neither this railway company, nor any other carrier shall be liable . . . for any loss or damage occasioned by riots, strikes, the acts of God, or the public enemy." And provides that in event of loss or damage to the property (the corn) therein mentioned, "the amount of loss or damage shall be computed at the value or cost" of such corn "at the place and time of shipment."
The car of corn never reached the destination mentioned. On June 5, it was still in the defendant's yards, immediately adjacent to the Mississippi river in North St. Louis, and was so damaged by the high waters of that date as to be practically destroyed. The principal defense interposed and relied upon to defeat plaintiff's recovery, is that the damage resulted from the act of God, by the sudden and unexpected inundation of defendant's yards, by reason of the extreme high water of June 5. It will be observed by reference to the clause of the bill of lading above quoted, that the defendant is not liable for loss or damage resulting from the act of God.
The plaintiff having made a prima-facie case by the introduction of the bill of lading and oral testimony in support of the allegations of its petition, the defendant sought to bring itself within the exception in the bill of lading referred to, and in order to escape liability under this provision of its contract, showed first, that although the bill of lading was issued by it to plaintiff on June 3 at about one o'clock p. m., the car, in fact, was not placed in its yards by the Wiggins Ferry Company until 1:25 p. m. on the following day, June 4, and that when the car was thus actually placed in its charge there was no "card" accompanying the same, showing its destination, nor did any shipping instructions accompany the car from the ferry company and in the absence of this card or shipping instructions, the car was placed on the holdover track by defendant's yard men, awaiting the necessary billing and instructions, in the usual course, from its commercial office, and that such billing and instructions were not received by those in charge of the yard office until morning of June 5, on which date, at about eleven o'clock a. m., the yards became so completely inundated as to enforce a suspension of the work of removing the cars therefrom, and that for the reason no card or instructions accompanied the car on June 4, when received from the ferry company, and none were communicated from its commercial office to the yard office until the morning of June 5, it was impossible by the exercise of ordinary endeavor and diligence in that behalf, to remove the car from its perilous situation before the inundation became of such proportions as to render it wholly impossible.
By Mr. Bowie, the officer in charge of the United States Weather Bureau at St. Louis, the defendant showed the high water which occasioned the loss to have been of an extraordinary character, so much as to, on June 10, exceed any stage of the river since the year 1844. Witness gave testimony with respect to the comparative statement of the several high-water stages for many years at St. Louis from the records at his office, from which testimony the following table is taken:
His record also showed for the several days, including the date of the shipment involved, just prior thereto and immediately thereafter, the stage of the water, as ascertained about 6:30 each morning and 6:30 each evening as follows:
"May 31
June 1
June 2
June 3
June 4
On the morning of June 5, the high-water mark was 33.5 feet and the evening of the same day, 34.2 feet. It reached its highest stage of thirty-eight feet on June 10, after which it gradually receded. It was also shown by this witness that his office issued daily bulletins from May 29, each day, prior to and including the days involved in this controversy, predicting a continual rise in the river at this point, as above indicated, and that these bulletins were daily published in the morning and afternoon papers of the city of St. Louis for the information of the public. On June 2, the weather bureau predicted and published the Mississippi river to be above the danger line at all points in the St. Louis district and that it would rise rapidly. On June 3, the prediction was the rise would continue rapidly during the next forty-eight hours, with a stage of 32 1/2 feet by Thursday morning and thirty-four feet by Friday. Measures to protect property subject to damage from a thirty-five foot stage Saturday or Sunday were advised. On June 4, witness' bulletin was to the following effect:
Defendant proved that its main line of railroad runs along an embankment immediately on the west bank of the Mississippi river in north St. Louis, and its yards for the handling of its freight cars and loads is immediately west of its main line at this point; that its said yards are about three feet lower than its main line and that it has a line of railroad or trackage also constructed on an embankment immediately on the west side of its yards. The two levees or embankments the one on the east side, on which its main line is situate, and the one on the west mentioned, operate as a levee or protection against the rising river and the overflow therefrom and therefore render its yards, although on lower ground, secure from all ordinary rises of the river, and had since their construction in 1892, operated a safe and reliable protection from the thirty-six foot stage of water of that year, which was the highest stage known since 1857, and it afforded complete protection at all times thereafter, up to June 5, 1903, the date on which plaintiff's corn was lost. Upon this showing, it maintains that it had exercised reasonable diligence with respect to this and other cars then in its yards and that the exceeding high stage of water inundating its yards on June 5, so far exceeded all recent human experience as to extend quite beyond the rule requiring the defendant to exercise due diligence to the end of preserving the car from loss, within the range of reasonable anticipation, and that the exceeding high stage of water at that date and the consequent overflow of its yards from which the plaintiff's loss occurred, was therefore solely an act of God, without the defendant's negligence in any manner, contributing thereto, inasmuch as an ordinarily prudent person would not anticipate this extraordinary stage of water. In furtherance of the theory that it was in nowise negligent, contributing to the loss, it introduced much evidence tending to show the usual course of procedure for handling freight and placing in an outgoing train, cars situate as this one was (not accompanied upon its delivery with a card or other shipping instructions). The result of this evidence is that in case a car is not accompanied with a card or other shipping instructions, then it is held...
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