Grimes v. Eddy

• Decision Date: 04 December 1894
• Citation: 126 Mo. 168,28 S.W. 756
• Parties: GRIMES v. EDDY et al.
• Court: Missouri Supreme Court

28 S.W. 756

126 Mo. 168

GRIMES v. EDDY et al.

Supreme Court of Missouri, Division No. 2.

December 4, 1894.

CARRIERS — ESCAPE OF TEXAS CATTLE — COMMUNICATION OF FEVER — LIABILITY OF RAILROAD COMPANY — CONSTITUTIONALITY OF ACT — INTERSTATE COMMERCE.

1. A railway company which negligently allows Texas cattle to escape from its cars, and run at large, thereby affecting native cattle with Texas fever, is liable for the resulting loss.

2. Courts will take judicial notice of the fact that Texas cattle have some contagious or infectious disease communicable to native cattle. Bradford v. Floyd, 80 Mo. 207, overruled.

3. Rev. St. § 953, in so far as it provides that no railroad company or steamboat owner shall transport through the state Texas, Mexican, Cherokee, or Indian cattle afflicted with Texas or Spanish fever, is void as an interference with interstate commerce; it, in enect, entirely prohibiting the transportation through the state of such varieties of cattle, since all of them contain microbes by which Texas fever may be communicated to native cattle.

Appeal from circuit court, Monroe county; Thomas H. Bacon, Judge.

Action by Elliott Grimes against George A. Eddy and H. C. Cross, as receivers of the Missouri, Kansas & Texas Railway Company, to recover the value of a cow alleged to have died from Texas fever, contracted from cattle shipped over defendant's railway. From a judgment in favor of plaintiff, defendants appeal. Reversed in part.

Jackson & Montgomery, for appellants. R. N. Bodine and Stocking & Alexander, for respondent.

BURGESS, J.

This is an action to recover the value of a cow alleged to have died from Texas fever, contracted from cattle shipped over the Missouri, Kansas & Texas Railway while the same was being operated by the defendants, as receivers. The suit was commenced before a justice of the peace in Monroe county, and appealed to the circuit court. The statement is in two counts, and, leaving off the caption, is as follows: "Plaintiff says that the Missouri, Kansas & Texas Railway Company was on and after the day hereinafter mentioned, and now is, a railroad corporation organized under the laws of the state of Kansas, and that, at the time hereinafter mentioned, defendants, George A. Eddy and H. C. Cross, were, and now are, receivers of the said Missouri, Kansas & Texas Railway Company, appointed by the United States circuit court for the Eighth judicial circuit, and, as such receivers, were at said date, and now are, in possession of the railroad of said corporation, known as the Missouri, Kansas & Texas Railroad, running through the county of Monroe, in the state of Missouri, and, as said receivers, engaged in running and operating the same, and doing a general railroad business over and on said railroad. Plaintiff states that on or about the ____ day of May, 1890, defendants, as such receivers, were engaged in transporting upon said railroad, and had upon their cars, while so transporting, through Monroe county, Missouri, a large number of Texas cattle, said cattle being at said time infected with a deadly disease, known as `Texas fever'; that all Texas cattle, during the spring and summer months, whether perceptibly affected by said disease or not, communicate the same to all cattle raised in Missouri passing over land previously passed over by such Texas cattle; that defendants at said time well knew that said cattle were Texas cattle, that they were infected with said disease, and of the liability aforesaid to communicate such disease to Missouri-raised cattle, by leaving the germs of said disease upon the ground over which they traveled; and that defendants, as such receivers, so knowing, and while said Texas cattle were by them being transported across Monroe county, Missouri, wrongfully and negligently, by their servants and employés, permitted said Texas cattle, so infected with said disease, and so liable to communicate said disease as aforesaid, whether apparently affected themselves or not, to escape from the control and custody of said defendants, and run at large over a large area of land in Monroe county, Missouri, including public highways, for a space of twelve hours or more; and that, plaintiff then and there being the owner of a certain Missouri-raised cow, of the value of one hundred and twenty-five dollars, the same, without any fault or negligence of plaintiff, passed over the ground over which said Texas cattle had passed as aforesaid, and thereby the said disease of Texas fever was communicated to plaintiff's cow, whereby she sickened and died, so that she was wholly lost to plaintiff, whereby he was damaged in the sum of one hundred and twenty-five dollars, for which he asks judgment. Plaintiff, for another cause of action against defendants, as receivers, as aforesaid, states that the Missouri, Kansas & Texas Railway Company was on and after the days hereinafter mentioned, and now is, a railroad corporation organized under the laws of the state of Kansas, and, at the time hereinafter mentioned, defendants were, and now are, the receivers of the said Missouri, Kansas & Texas Railway Company, appointed by the United States circuit court for the Eighth judicial circuit, and, as such receivers, were at said dates, and now are, in possession of the railroad of said corporation known as the `Missouri, Kansas & Texas Railroad,' running through the county of Monroe, in the state of Missouri, and, as such receivers, engaged in running and operating the same, and doing a general railroad business over and on said railroad. Plaintiff states that on or about the ____ day of May, 1890, defendants, as such receivers, were engaged in transporting upon said railroad, and had upon their cars while so transporting, through Monroe county, Missouri, a large number of Texas cattle, at said time being affected with the disease known as `Texas fever'; that defendant at said time well knew that said cattle were Texas cattle, and were affected with Texas fever; that said cattle, while being so transported by defendants, were permitted by defendants to escape from the cars in said Monroe county, and to run at large over a large area of land in said county along the route and in the vicinity of said railroad, including public highways, for the space of twelve hours or more; and that, plaintiff then and there being the owner of a certain native Missouri-raised cow, of the value of one hundred and twenty-five dollars, the same, without any fault or negligence on the part of the plaintiff, passed over the ground over which said Texas cattle had passed as aforesaid, and thereby the said disease of Texas fever was communicated to plaintiff's said cow, whereby she sickened and died, so that she was wholly lost to plaintiff, whereby he was damaged in the sum of one hundred and twenty-five dollars; wherefore plaintiff says that under the provisions of sections 953 and 954, Rev. St. Mo. 1889, he is entitled to recover from defendants the sum of one hundred and twenty-five dollars, for which he asks judgment." To the statement, defendants filed an answer, denying all the allegations contained therein. A separate trial was had on each count, resulting in a verdict and judgment for plaintiff on both counts.

It was by stipulation admitted that the cattle, which it is claimed caused the injury, were shipped from Sinton, in San Patricio county, Tex., over a line of railroad connecting with that operated by the defendants at West Point, Tex., and then delivered to the defendants, consigned in Chicago, Ill. Said cattle were shipped May 16, 1890, and reached Paris, Monroe county, on the morning of May 21, 1890, while en route to Chicago. As the cars going eastward towards the depot passed over the switch, they were wrecked. The engine and several cars loaded with coal went over the switch safely, but the rear trucks of one coal car, and the cars in which these cattle were loaded, were thrown from the track, and the balance of the train remained standing on the track in a westerly direction from the wreck. One of the cattle cars was broken in at one end, and some of the cattle escaped in this way. The cars were thrown over to one side, and the cattle all thrown together at one end, and it became necessary to remove them speedily to prevent them smothering. This was done by opening the side doors, pulling them out with ropes, etc. The town of Paris lies nearly wholly south of the railway, and there is no street across the railway track west of where the wreck occurred. The depot and stock yard are east of the place of the wreck, the stock yard on the north side of the track. At the place of the wreck the right of way on the north side abuts upon inclosed land; and just east of the wreck, and opposite where the forward part of the train stood, is located a section house and tool house. The right of way opposite the wreck was also inclosed ground. The wrecked cars were thrown towards the south, a coal car striking a telegraph pole, and bearing it down upon the wire fence close to where it stood. The train in the rear of the wreck stood on the track, reaching back the length of some 15 or 16 cars to a trestle or fill; so that between the wreck and the fill there was no way to pass from the south side of the track to the north side, because of the cars in the train standing on the main track. A short distance west of the wreck, and south of the railway, is a little open piece of ground, through which a road runs from its connection with the regularly laid out streets of the town to a road crossing across the railway, through a gate, into private grounds lying north of the track. The cars of the train not wrecked stood across this crossing. As the cattle escaped from, or were removed from, the wrecked cars, they were scattered along the right of way south of the track, and between the wreck and the road crossing west of the wreck about 150 feet. Plaintiff's evidence showed no efforts of any one,...