Harrington v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 16 May 1910
• Citation: 143 Mo. App. 418,128 S.W. 807
• Parties: HARRINGTON v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

128 S.W. 807

143 Mo. App. 418

HARRINGTON v. CHICAGO, R. I. & P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 16, 1910.

1. CARRIERS (§ 218)—CARRIAGE OF STOCK— RATE—CONTRACT—CONSIDERATION.

Where the trial court found that the rate charged was the usual rate for shipment of mules between the same points, and there was evidence to support the finding, no consideration was shown to support a contract releasing the carrier from liability, or for an agreed valuation of the animals at less than their real valuation, though the contract of shipment stated the rate was the tariff rate, and less than the rate for transportation at carrier's risk.

2. CARRIERS (§ 218)—CARRIAGE OF STOCK— CONTRACT—LOSS—NOTICE.

Where a contract to ship mules provided for notice of loss to be given before leaving point of shipment or within one day after arriving at destination, it was not necessary to give notice of loss, where there was none before leaving the point of shipment, and the stock never reached the place of destination, and the carrier took possession of the stock and sold a part of it, and also negotiated for a settlement.

Appeal from Circuit Court, Clinton County; A. D. Burns, Judge.

Action by W. K. Harrington against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. A. Low, Paul E. Walker, E. C. Hall, and Sebree, Conrad & Wendorff, for appellant. John A. Cross, for respondent.

ELLISON, J.

Plaintiff shipped a car load of mules over defendant's road, and they were lost to him by reason, as he charges, of defendant's negligence. He afterwards brought this action for damages and recovered judgment in the circuit court. The shipment was made from Chattanooga, Okl., and the destination was Kansas City, Mo. There were 21 mules put into one car bedded with straw, and this car was put in the front part of the train, near the engine. It had openings in the front end. After the train had left Chattanooga and had gotten 12 or 15 miles away, the car took fire and burned some of the mules so badly that they were killed by defendant's servants, and injured the others so that the shipment was abandoned, and defendant sold the remaining mules for $1,350. By agreement of the parties a jury was waived, and the cause submitted to the trial court, which made the following finding of facts: "The court finds that the plaintiff was the owner of the stock shipped on the 3d day of June, 1907, from Chattanooga, Okl., to Kansas City, Mo.; that they were billed to W. K. Harrington; and that plaintiff entered into the contract offered in evidence in this case marked as `Exhibit A.' The court further finds that there were 21 mules in the car; that the same were started from Chattanooga on the date mentioned in the contract; that after the train had gone 10 or 12 miles from the station of Chattanooga the car in which the mules were loaded took fire; that 3 mules were either killed or so injured they afterwards had to be killed; that 18 mules were saved from the fire and were afterwards sold by the defendant's agents for the sum of $1,350; that at the time the car of mules caught fire it was in a...