Hahn v. St. Louis, K. C. & C. R. Co.

• Decision Date: 21 February 1910
• Citation: 141 Mo. App. 453,125 S.W. 1185
• Court: Missouri Court of Appeals
• Parties: HAHN v. ST. LOUIS, K. C. & C. R. CO.

125 S.W. 1185

141 Mo. App. 453

HAHN v. ST. LOUIS, K. C. & C. R. CO.

Kansas City Court of Appeals. Missouri.

February 21, 1910.

1. CARRIERS (§ 156) — EFFECT OF NEGLIGENCE ON CONDITIONS OF CONTRACT.

The exemptions and restrictions stipulated for in a contract of carriage do not relieve the carrier from liability for the consequences of its own negligence.

2. CARRIERS (§ 228) — LIVE STOCK SHIPMENT — ACTION FOR DELAY — BURDEN OF PROOF.

In an action for delay in the transportation of live stock, the burden is on the shipper throughout the trial to show that the cause of the delay was negligence by the carrier.

3. CARRIERS (§ 228) — LIVE STOCK SHIPMENT — ACTION FOR DELAY — BURDEN OF PROOF.

In an action against a carrier for delay in carrying a shipment of live stock, plaintiff sustains his burden of proving that the delay was the result of negligence by showing that the transportation was interrupted by a wreck on defendant's road, without showing that the wreck was the result of negligence, as a wreck is presumed to have resulted from negligence.

4. CARRIERS (§ 230) — LIVE STOCK SHIPMENT — ACTION FOR DELAY — NEGLIGENCE — QUESTION FOR JURY.

Evidence held to raise for the jury the question whether the wreck which caused the delay in the shipment of live stock was the result of negligence.

5. CARRIERS (§ 229) — DELAY IN SHIPPING LIVE STOCK — DAMAGES.

Where a carrier, being unable to carry the shipment of live stock because of a wreck on its road resulting from its negligence, returned the stock to the shipper, and he employed another carrier to take the shipment to its destination with reasonable expedition, the defaulting carrier is liable for actual loss, such as shrinkage in weight of the animals, decline in the market, and expense incurred on account of the reshipment.

6. CARRIERS (§ 230) — DELAY IN TRANSPORTATION — NEGLIGENCE — INSTRUCTIONS AS TO BURDEN OF PROOF.

In an action for delay in transporting live stock because of a wreck on defendant's road, an instruction that "it devolved on defendant to show * * * that said wreck was unavoidable and occurred without any negligence on the part of defendant" satisfies the rule that defendant was required only to show that the wreck was unavoidable by the exercise of reasonable care.

Appeal from Circuit Court, Morgan County; William H. Martin, Judge.

Action by J. H. Hahn against the St. Louis, Kansas City & Colorado Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

W. F. Evans, A. H. Bolte, and Sebree, Conrad & Wendorff, for appellant. A. L. Ross and H. E. Neville, for respondent.

JOHNSON, J.

This is an action against a common carrier to recover damages for the failure of the carrier to transport 224 head of stock cattle from Versailles, in this state, to Mansfield, Ill. Defendant received the cattle, agreed to carry them for hire and did carry them some 50 or 60 miles, but, being stopped by a wreck on its own line, was compelled to take the cattle back to the starting point, where they were delivered to plaintiff, and a few days later were shipped by him to Mansfield over another railroad. The damages sustained in consequence of this abortive attempt at transportation are the subject of the demand which plaintiff seeks to found on negligence of defendant. A trial of the issues presented by the pleadings and evidence resulted in a verdict and judgment for plaintiff for $911, and the case is before us on the appeal of defendant.

The negligence alleged in the petition is "that the defendant by and through its negligence wholly failed and neglected to convey and transport said cattle from Versailles, Mo., to Mansfield, Ill., and deliver the same to plaintiff at Mansfield as it had agreed and contracted to do, but, on the contrary, after keeping said cattle in its cars and on its road for over 24 hours, defendant, by and through its agents and servants, returned said entire shipment of cattle, consisting of 224 head contained in 7 cars, to Versailles station, and negligently failed and refused to transport said cattle and deliver them to plaintiff at Mansfield, Ill., as it had agreed to do." The answer contains a general traverse, and among other special defenses alleges, in effect, that the wreck which stopped the shipment and compelled defendant to turn back was due to unavoidable accident, and not to any negligence of defendant.

Material facts disclosed by the record thus may be stated: Plaintiff, a stockman living five or six miles from Versailles, advertised a sale of the stock cattle in controversy to be made September 14, 1907, in Mansfield, Ill. On September 11th he delivered the cattle at Versailles, and he and defendant entered into a written contract for their transportation to Mansfield, which in the ordinary course of business should have been accomplished in ample time for the advertised sale. In the answer defendant pleads certain terms and conditions of the written contract; but, since the cause of action alleged in the petition is based on negligence, it is not necessary to waste any time on the contents of the contract and their legal import. Plaintiff must prove the negligence he avers or lose his case, and, on proof of such negligence, the exemptions and restrictions stipulated for in the written contract become ineffectual, since, all other considerations aside, authorities unanimously agree that a common carrier in such cases cannot relieve itself by contract from liability for the consequences of its own negligence. The train carrying the cattle proceeded eastward to a point near Argyle, where it was compelled to stop on account of the wreck of a west-bound freight train which occurred at the bridge over the Maries river. The havoc wrought by the disaster was very great. Cars were derailed and smashed, ties in the roadbed cut in two, the track torn up, and the west end of the heavy steel bridge of the strongest construction was so badly wrecked and damaged as to be unsafe. It took a number of days for defendant, with the utmost effort, to open...