Humphreys v. St. Louis & H. Ry. Co.
| Decision Date | 02 July 1915 |
| Docket Number | No. 13851.,13851. |
| Citation | 178 S.W. 233,191 Mo. App. 710 |
| Court | Missouri Court of Appeals |
| Parties | HUMPHREYS v. ST. LOUIS & H. RY. CO. |
Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.
Action by William R. Humphreys against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
R. L. Sutton, of Troy, 3. D. Hostetter, of Bowling Green, and G. C. Huston, of Troy, for appellant. Woolfolk & Cannon, Avery, Young, Dudley & Killam, and John L. Burns, all of Troy, for respondent.
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.
Defendant is a common carrier, and, as such, maintains a station and stock pens at Troy, Mo. Plaintiff delivered 87 fat hogs to defendant in its stock pen with a view of loading them on a car for shipment, and 5 of the hogs escaped through a defective fence. The hogs were lost, and the suit proceeds for their value. It appears that the fence of the stock pen was defective, and had been so for several months. Some of the posts were rotted, and the boards were insecurely nailed thereto. Because of this defective condition it is said the 5 hogs escaped from the pen and were lost to plaintiff.
There can be no doubt that the law casts an obligation on a common carrier of live stock to exercise ordinary care to the end of maintaining its pens for the reception of stock in a reasonably safe condition so as to prevent the injury or escape of the animals placed therein by a patron for shipment. See Reading v. Chicago, B. & Q. R. Co., 165 Mo. App. 123, 145 S. W. 1166; Lacklarid v. Chicago & A. R. Co., 101 Mo. App. 420, 74 S. W. 505; Mason v. Mo. Pac. R. Co., 25 Mo. App. 473; Holland v. Chicago, R. I. & P. R. Co., 163 Mo. App. 251, 146 S. W. 1181; 1 Hutchinson on Carriers (3d Ed., M. & D.) §§ 114, 115.
But it is argued it should appear the carrier knew the hogs were delivered in the pen, or otherwise the obligation in respect of them may not be invoked, and., no doubt, this is generally true. However, express notice to the carrier is not always essential. If a conventional arrangement otherwise appears, or if a practice or custom obtains between the carrier and its patron so as to operate an invitation on the part of the carrier to the shipper to deliver the stock in the pen for shipment without express notice concerning the fact, this will suffice. See 1 Hutchinson on Carriers (3d Ed., M. & D.) § 115. It is true that there is no direct evidence that plaintiff notified defendant's agent the hogs were in the pen in the early part of the day, though the evidence is the agent issued a bill of lading covering the transportation of 82 of the number to St. Louis that evening. It appears that plaintiff was engaged in the business of buying and shipping stock, and, as such, was a regular patron of defendant. He delivered hogs and cattle frequently to defendant in the identical pen at Troy for shipment, and defendant accepted such shipments as tendered. On the day previous to the shipment involved here plaintiff ordered a car from defendant's agent at Troy to transport hogs to St. Louis, and this car was provided by defendant for that purpose on the day the hogs were placed in the pen. The evidence is that the stock pen is near defendant's depot where the agent maintained his office and on its property. Several hours were consumed in receiving the hogs, weighing them, and placing them in the pen. Having placed the hogs in the pen, plaintiff returned to his home to await the arrival of the car later in the day into which they were to be loaded, and during the time 5 of them escaped. Plaintiff returned in the evening, loaded the remainder—that is, 82 head of hogs—in the car, and received a bill of lading from the agent. Though the evidence is meager, it was competent for the jury to find from these facts that defendant knew the hogs were placed in the pen for shipment. Certainly, such may be inferred from what appears. Especially is this true in view of the fact that plaintiff frequently shipped hogs from that place and followed the usual course in ordering the car from the agent the day before. Obviously defendant invited him to make the delivery, accordingly, and should be regarded after verdict on these facts as if it knew that he did so. This being true, defendant's obligation with respect to the safety of the hogs attached immediately on the delivery in the pen, for such was accessory to the carriage. See Mason v. Mo. Pac. R. Co., 25 Mo. App. 473. This is true, too, though plaintiff was to call later in the day and load the hogs in the car, for in the interim, after delivery in the pen, under such circumstances, the obligation to protect against their escape obtained. See Holland v. Chicago, R. I. & P. R. Co., 163 Mo. App. 251, 146 S. W. 1181. The matter of plaintiff's contributory negligence because he knew the pen to be more or less defective was likewise a question for the jury. The petition avers that the stock pen had become defective through the carelessness of defendant in that the posts and planks and nails used in the construction of the enclosure were suffered by defendant to become so rotted, rusted, worn, wasted, and weakened as to render them insufficient to protect against the escape of the hogs.
Plaintiff's first instruction submitted the negligence relied upon, and required a finding of the facts alleged concerning the same. But the third instruction given at his request is general in character, and purports to cover the whole case, in that it authorizes a verdict for plaintiff on the finding of the matters therein recited. His third instruction is as follows:
"The court instructs the jury that, if it has been proven to your satisfaction by the evidence given in the case that the defendant railroad was a common carrier for the purpose of carrying freight, especially hogs, from its stock pens near its railroad station in Troy, Mo., to intermediate points on its railroad on the date alleged in its petition, to wit, the 23d day of March, 1911, and that it did receive and transport this kind of freight for hire at and about that time, then it was the duty of said defendant to keep its stockyards or stock pens at Troy, Mo., in a reasonably safe and secure condition for the purposes intended, and now if you believe and find from the evidence that on said date, to wit, the 23d day of March, 1911, that the plaintiff herein delivered to the defendant for shipment to St. Louis, Mo., 87 head of hogs, and that the defendant received said hogs for shipment and put them or had them put or suffered them to be put in its stock pens for shipment over its road and while they were in said pens of defendant the defendant failed to keep its pens in which they were in a safe and secure condition, and by reason of its failure so to do 5 of plaintiff's hogs escaped from said pens and were lost to plaintiff, then the law is that the defendant must be responsible to the plaintiff for the value of said hogs so lost as shown by the evidence, provided your verdict, if you find for the plaintiff, shall not exceed $62.16, with interest thereon at 6 per cent. from the date of the filing of this suit to wit, the 2d day of September, 1911."
This instruction authorized a finding for plaintiff without regard to the specific averments of negligence contained in the petition on a mere finding that:
"The defendant failed to keep its pens in which they were in a safe and secure condition, and by reason of its failure so to do 5 of plaintiff's hogs escaped from said pens and were lost to plaintiff."
This is insufficient under the established rule of decision which obtains in the Supreme Court, for that such a general instruction is said to permit the jurors to evolve any theory of negligence they may imagine and cast liability against defendant on grounds other than those set forth in...
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