Humphreys v. St. Louis & Hannibal Railway Co.

• Decision Date: 02 July 1915
• Parties: WILLIAM R. HUMPHREYS, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

178 S.W. 233

191 Mo.App. 710

WILLIAM R. HUMPHREYS, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 2, 1915

Appeal from Lincoln Circuit Court.--Hon. B. H. Dyer, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. L Sutton, J. D. Hostetter and G. C. Huston for appellant.

(1) There was no evidence tending to show that defendant or its agent had any notice or knowledge of the delivery of plaintiff's hogs into its stock pens, and no liability of defendant attached with reference to them prior to the escape of the hogs alleged to have been lost. Merriam v Railroad, 20 Conn. 354; Williams v. Peytavin, 4 Mart. (La.) 304; Grosvenor v. Railroad, 39 N.Y 34; Blachard v. Isaacs, 3 Barb. (N. Y.) 388; Ball v. New Jersey Steamboat Co., 1 Daly (N. Y.) 491; O'Bannon v. Southern Express Co., 51 Ala. 481; Wells v. Railroad, 51 N.C. 47; Lackland v. Railroad, 101 Mo.App. 420; Holland v. Railroad, 139 Mo.App. 716; Travy v. Railroad, 80 Mo.App. 392; Holland v. Railroad, 163 Mo.App. 252; Reading v. Railroad, 165 Mo.App. 129; Reading v. Railroad, 173 S.W. 452; Packard v. Getnan, 6 Cow. 757; Milne v. Railroad, 155 Mo.App. 470. (2) Plaintiff's instruction numbered 3 was erroneous in that it enlarged the issues beyond the specific negligence alleged in the petition, and permitted the jury to draw upon its imagination with respect to the grounds of liability. Reading v. Railroad, 165 Mo.App. 123; Black v. Railroad, 217 Mo. 672; Bank v. Murdock, 62 Mo. 73; Mansur v. Botts, 80 Mo. 658; Zachra v. American Mfg. Co., 159 Mo.App. 96; Gibler v. Railroad, 148 Mo.App. 475, 487; Lowenstein v. Railroad, 110 Mo.App. 686; McManamee v. Railroad, 135 Mo. 447; Bamberge v. Supreme Tribe Ben Hur, 159 Mo.App. 101. (3) The plaintiff, in his efforts to prove his own case, clearly showed himself guilty of such contributory negligence as to bar a recovery, and it was the plain duty of the court to so declare as a matter of law. Lackland v. Railroad, 101 Mo.App. 427; Railroad v. Law, 68 Ark. 218; Chapin v. Railroad, 79 Ia. 582; Susong v. Railroad, 115 Ga. 361; Hutchinson v. Railroad, 37 Minn. 524; Lee v. Railroad, 72 N.C. 236; Betts v. Farmers L. & T. Co., 21 Wis. 80; Newby v. Railroad, 19 Mo.App. 391; Allen v. St. Louis Transit Co., 183 Mo. 424; Ramp v. Railroad, 133 Mo.App. 703; Border v. Sedalia, 161 Mo.App. 638. (4) Moreover, if plaintiff could not be declared guilty of contibutory negligence as a matter of law, at least there was ample evidence to go to the jury upon this issue, introduced, solely by plaintiff in his efforts to make out his case, and the court erred in refusing to submit the issue to the jury as requested by defendant in its instruction numbered 4, and in ignoring the issue in instructions numbers 1 and 3 given on behalf of the plaintiff. Lackland v. Railroad, 101 Mo.App. 427; Railroad v. Law, 68 Ark. 218; Chapin v. Railroad, 79 Ia. 582; Susong v. Railroad, 115 Ga. 361; Hutchinson v. Railroad, 37 Minn. 524; Lee v. Railroad, 72 N.C. 236; Betts v. Farmers L. & T. Co., 21 Wis. 80; Newby v. Railroad, 19 Mo.App. 391; Allen v. St. Louis Transit Co., 183 Mo. 424; Ramp v. Railroad, 133 Mo.App. 703; Border v. Sedalia, 161 Mo.App. 638. (5) The allowance of interest on the damages claimed is reversible error. Reading v. Railroad, 173 S.W. 452. (6) There was manifest error in excluding the defendant's record of way bills, kept in the regular course of business at its Troy station. This evidence was both competent and relevant. Wright v. Railroad, 118 Mo.App. 392; Greenlief on Evidence (16 Ed.), sec. 563, page 698; 1 Elliott on Evidence, sec. 208; Leschen v. Brazelle, 164 Mo.App. 415; 10 Encyclopedia of Evidence, page 719; Railroad v. Zapp, 209 Ill. 339; Lyons v. Corder, 253 Mo. 549. (7) The petition does not state facts sufficient to constitute a cause of action against defendant. See authorities cited under point 1.

John L. Burns for respondent.

(1) Defendant had invited plaintiff to deliver his hogs into its pens on that day and it was the duty of defendant to make the pens reasonably safe, in default of which, it was liable for the damages sustained. Mason v. Railroad, 25 Mo.App. 480; Tracey v. Railroad, 80 Mo.App. 392; Cooke v. Railroad, 57 Mo.App. 478; Kincaid v. Railroad, 62 Mo.App. 365; McCulough v. Railroad, 34 Mo.App. 23; Paddock v. Railroad, 60 Mo.App. 339; Reading v. Railroad, 165 Mo.App. 128; Lackland v. Railroad, 101 Mo.App. 420; Holland v. Railroad, 163 Mo.App. 251. (2) There was no error in giving plaintiff's instruction, numbered 3. It must be read in connection with the other instructions, and being so read, the jury could not possibly be misled thereby. The only way in which the pens could be unsafe or insecure so as to permit the escape of the hogs, would be because of defects in the materials, planks or posts out of which the pens were constructed, as specified in the petition, and in instruction numbered 1 given for plaintiff and in the "evidence given in the case" as this instruction required. There is no warrant to the jury to "rove" in finding defendant's negligence. The case is entirely different from the Reading case and others cited by appellant. There was no "evidence" in the case from which any defects could be found, except those specified in the petition. Where instructions taken as a whole, present the facts properly to the jury, they should be given, although one of them standing alone would be erroneous. Heinzle v. Railroad, 213 Mo. 102; Leise v. Meyer, 143 Mo. 547; Flaherty v. St. Louis Transit Co., 207 Mo. 318; Chambers v. Chester, 172 Mo. 461; Shores v. St. Joseph, 134 Mo.App. 9; Evers v. Wiggins Ferry Co., 127 Mo.App. 236; Senn v. Railroad, 135 Mo. 512. (3) There was no error in the refusal of defendant's instruction numbered 4 for various good and sufficient reasons. (a) Contributory negligence is an affirmative defense and must be pleaded before plaintiff is required to take any notice of it in his instructions. Borders v. Railroad, 168 Mo.App. 172; Peperknorn v. Railroad, 154 S.W. 836; Benjamin v. Railroad, 245 Mo. 598; Donovan v. Railroad, 89 Mo. 147; Stone v. Hunt, 94 Mo. 475; Mosman v. Bender, 80 Mo. 579; Collett v. Huhlman, 243 Mo. 585. (b) The instruction, numbered 4, imposes upon plaintiff the burden of guarding his hogs after delivery of the same to defendant for carriage, whereas it was the duty of defendant to either provide proper pens to retain the hogs or else to otherwise restrain them, and not the duty of plaintiff to do so. Reading v. Railroad, 165 Mo.App. 128. (c) The instruction is further faulty in that it imposes upon plaintiff the burden of passing upon the sufficiency of the pen at his peril. Sloan v. Railroad, 58 Mo. 221; Potts v. Railroad, 17 Mo.App. 394; Mason v. Railroad, 25 Mo.App. 480; Tracy v. Railroad, 80 Mo.App. 389, 392. (d) The instruction further imposes an excessive burden on plaintiff for the reason that plaintiff is denied the right to recovery, if he knew that hogs "could" escape, that is, that it was possible for them to escape, whereas he is only chargeable if the defects were so glaring and obvious that a reasonably prudent man would have refused to put hogs in the pen. Reading v. Railroad, 165 Mo.App. 129. (5) It was proper to allow interest from the day suit was filed. This in effect is a suit for the loss of the hogs in toto, not for damages. It is not true that in all actions ex delicto interest is denied. From the beginning of our jurisprudence in this State, interest has been allowed for goods lost by carriers. Gray v. Packet Co., 64 Mo. 47; Dunn v. Railroad, 68 Mo. 268; Goodman v. Railroad, 71 Mo.App. 460; Lachner Bros. v. Express Co., 72 Mo.App. 13. (6) There was no error in excluding defendant's record of way bills offered in evidence. This evidence was both incompetent and irrelevant. They are not carbon copies, and do not stand on the same footing as carbon copies. Neither are they books of account within the meaning of the statutes, R. S. 1909, sec. 6355, or within the shopbook rule at common law. Traber v. Hicks, 131 Mo. 189; Haas v. Hicks, 131 Kan. 787; 1 Greenleaf on Evidence, secs. 117-119; Jones on Evidence (2 Ed.), secs. 209 & 225; Seibert v. Ragsdale, 103 Ky. 206; Smith v. Brown, 151 Mass. 338; Westinghouse Co. v. Tilden, 56 Neb. 129. Neither do the press book copies purport to be complete copies of the waybill, so as to be admissible as secondary evidence of the waybill or bill of lading. An inspection of the proffered evidence will show that no property is described and that most of the important features of the bills are absent. They are, in other words, obviously not full copies of any document whatever and are not admissible as copies under the secondary evidence rule. 17 Cyc., pages 517, 518; McKelvey on Evidence, secs. 164-166; Kyser v. Railroad, 56 Iowa 207. (7) The petition states a good cause of action. See authorities cited under point 1 of this brief. Especially after a verdict is rendered, in the absence of any demurrer. Bowie v. Kansas City, 51 Mo. 454, 461; Munchow v. Munchow, 96 Mo.App. 553; Scamell v. Transit Co., 103 Mo.App. 504; Winn v. Railroad, 245 Mo. 406; Morrison v. Railroad, 162. Mo.App. 662.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

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, Missouri. Plaintiff delivered eighty-seven fat hogs to defendant in its stock pens, with a view of loading them on a car for shipment, and five of the hogs escaped through a defective fence. The hogs were lost and the suit proceeds for their value.

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