Hurst v. St. Louis & S. F. R. Co.

• Decision Date: 27 February 1906
• Citation: 117 Mo. App. 25,94 S.W. 794
• Court: Missouri Court of Appeals
• Parties: HURST v. ST. LOUIS & S. F. R. CO.

94 S.W. 794

117 Mo. App. 25

HURST v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

1. CARRIERS — DIVERSION OF FREIGHT — INJURIES — CONNECTING CARRIERS — INITIAL CARRIER'S LIABILITY.

Where, after the shipment of certain apples, the original destination was changed under an agreement between plaintiff and the initial carrier at the point of shipment requiring transportation over another road, the initial carrier remained liable for proper care of the apples until they reached their final destination, though plaintiff communicated with the agent of the connecting carrier merely for the purpose of expediting the transit.

2. CONTRACTS—WHAT LAW GOVERNS.

A contract between a carrier and shipper, made in Missouri, by which the carrier agreed to divert the shipment to a different destination in Texas, was governed by the laws of Missouri.

3. TRIAL—CONFLICTING INSTRUCTIONS.

In an action against a carrier for injuries to apples, the destination of which was changed in transit, so as to require transportation over the line of a connecting carrier, instructions for plaintiff making defendant responsible if the apples were damaged while in transit from the point of shipment to the ultimate destination, and for defendant making it responsible only in case the damage occurred between the point of shipment and the original destination, were objectionable as conflicting.

4. CARRIERS — CONNECTING CARRIERS — INJURIES TO FREIGHT—ACTIONS — INSTRUCTIONS.

Where, during the transit, the destination of certain apples was changed by agreement with the initial carrier so as to require transportation over a connecting line, and the apples were injured in transit, an instruction that, unless the jury believed that the ventilators of the car were carelessly and negligently closed or permitted to remain closed during transportation from the point of shipment to the point of diversion, the initial carrier was not liable, was erroneous for failure to predicate such carrier's nonliability for the negligence of the connecting carrier on a finding that such initial carrier had not agreed to carry the apples to their ultimate destination.

5. SAME—EXTENSION OF CONTRACT.

Where, during the transportation of apples, the destination was changed by agreement with the initial carrier according to custom, so as to require transportation over the line of a connecting carrier, such diversion amounted to a mere extension of the original contract, rendering the initial carrier responsible for negligent injury to the fruit, either by its own employés or those of the connecting carrier, under Rev. St. 1899, § 5222, providing that a common carrier shall be liable for injury to property caused by its negligence or that of any other common carrier to which the property may be delivered for transportation.

6. SAME — BILL OF LADING — LIMITED LIABILITY — BURDEN OF PROOF.

Where a bill of lading contained a valid exception to the carrier's common-law liability, and an action was brought for damage to fruit in transit thereunder, the petition charging the delivery of the fruit in sound condition and a redelivery in a damaged condition at destination, the burden was on the carrier to show that the damage was due to a cause within the exception, whereupon plaintiff might show that the damage, though due to an excepted

cause, was increased or contributed to by the carrier's negligence.

7. SAME — PRESUMPTION OF NEGLIGENCE — PLEADING.

Where, in an action against a carrier for negligence in the transportation of fruit, plaintiff specifically alleged that the negligence consisted in transporting the fruit in a refrigerator car with the ventilators closed, plaintiff was bound to prove the negligence alleged, and was not entitled to rely on the presumption of negligence arising from proof that the fruit was sound when delivered to the carrier and damaged when it reached its destination.

8. SAME—EVIDENCE—PRIMA FACIE CASE.

Where, in an action against a carrier for damages to apples in transit, plaintiff proved that when the apples were delivered to the carrier they were sound, and that when they arrived at destination they were found to be damaged by "heating and scalding," and that the ventilators of the car were closed, such proof established a prima facie case of defendant's negligence, without further proof that the ventilators of the car were closed by defendant's employés, and not by some third person.

9. DAMAGES—DUTY TO DIMINISH.

Where a car of fruit was diverted during transit by agreement with the initial carrier, the shipper was under no duty to take charge of the car at the point of diversion while the carriage was still unfinished and dispose of the fruit in order to avoid loss resulting from the carrier's failure to promptly forward the car to destination.

10. CARRIERS—INJURIES TO FRUIT — NEGLIGENCE.

Plaintiff was directed by a carrier's agent, in accordance with the custom at the station where plaintiff's apples were shipped, to place the apples on defendant's right of way preparatory to loading them into cars. While the apples were so placed, defendant's employés began to unload coal near the apples, and though plaintiff warned them to desist until the apples could be gotten out of the way, they refused, and the apples were injured by coal dust which sifted through the cracks in the barrels. Held, that such facts established negligence on the part of the carrier, justifying a recovery for the damage sustained.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Action by J. B. Hurst against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Woodruff & Mann, for appellant.

GOODE, J.

Plaintiff in three separate paragraphs in his petition declared on as many distinct causes of action. He is a dealer in apples at Washburn, Mo., buying and shipping them to Texas and other points, and has been engaged in that business for 20 years. He is accustomed to make shipments to Texas over defendant's railroad, usually loading at Washburn and Exeter.

Plaintiff's first cause of action is founded on damage done to 170 barrels of apples shipped over defendant's line from Exeter, Mo., on October 28, 1902. In the bill of lading these apples were consigned to plaintiff at Yoakum, Tex., with a direction to notify the Southern Commission Company. After the apples had been shipped, plaintiff gave directions for the shipment to be diverted from Yoakum, the original destination, to San Antonio. This change of destination was due to a dispute which arose between plaintiff and the Southern Commission Company to whom the apples had been sold. The fruit arrived at San Antonio on November 11th and plaintiff was there in person at the time. On examination it turned out the apples had been damaged by "heating and scalding," and it is for this damage plaintiff seeks to recover in the first paragraph of his petition. The fruit had been shipped in a refrigerator car and the alleged cause of the injury is that the ventilators of the car were closed during transit, preventing the entrance of fresh air and overheating the interior. The cause of action is thus stated: "Plaintiff further states that during the transit of said apples from Exeter, Mo., to Yoakum, Tex., defendant, at the request of plaintiff, diverted said shipment of apples from Yoakum to San Antonio, Tex. Plaintiff further states that said shipment of apples were loaded into and shipped from Exeter, Mo., in a refrigerator car, and that during transit the vents of said car were carelessly and negligently closed and permitted to remain closed; that by reason of the vents of said car being closed, and remaining closed during transit, said apples were heated and scalded and damaged by reason thereof, to plaintiff's damage in the sum of $272.20 for which plaintiff demanded payment by defendant on the 14th day of May, 1903. Wherefore plaintiff prays judgment for said sum of $272.20, together with interest thereon at the legal rate from said 15th day of May, 1903."

The second cause of action relates to 167 barrels of apples shipped over the defendant's railroad from Washburn, Mo., consigned to plaintiff at Waco, Tex., with directions to notify C. H. Cox & Co. While these apples were in transit to Waco, their original destination, and the next day after they had been shipped from Washburn, plaintiff directed that the shipment be diverted from Waco to San Angelo, in the same state, and the agent at Washburn agreed to make the diversion. After the apples reached Waco, they were left on a sidetrack for a few days, instead of being taken at once to San Angelo, and, as the weather was warm, they became overheated, and were damaged; whereas plaintiff testified that, if they had been carried promptly to the new destination, this would not have occurred. The case stated against defendant is as follows: "Plaintiff further states that the defendant on the 26th day of October, 1902, contracted and agreed with plaintiff, for a valuable consideration, to transport and carry for plaintiff from Washburn, Mo., to Waco, Tex., _____ barrels of apples, which said apples plaintiff, on the 26th day of October, 1902, delivered to defendant in good condition on board of its cars at Exeter, Mo. Plaintiff further states that during the transit of said shipment of apples from Washburn, Mo., to Waco, Tex., and on the 27th day of October, 1902, plaintiff ordered and directed defendant, as he had a right to do, and which order it was defendant's duty to faithfully obey and observe, to divert said shipment from Waco, Tex., to San Angelo, Tex. Plaintiff further states that defendant carelessly and negligently failed to divert said shipment of apples from Waco to San Angelo, Tex., as ordered and directed, but carelessly and negligently permitted said shipment of apples to stand until the 11th day of November, 1902, in the railroad yards at...