Jones v. St. L.-S.F. Ry. Co.

• Decision Date: 02 May 1932
• Docket Number: No. 17506.,17506.
• Citation: 50 S.W.2d 217
• Parties: W.L. JONES, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

50 S.W.2d 217

W.L. JONES, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.

No. 17506.

Kansas City Court of Appeals. Missouri.

May 2, 1932.

Appeal from Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

REVERSED AND REMANDED.

Wm. Anderson for respondent.

E.T. Miller, Henry S. Conrad, L.E. Durham, Hale Houts, Ilus M. Lee and Wright Conrad for appellant.

ARNOLD, J.

This suit was instituted in the circuit court of Cass county, Missouri, to recover damages for injuries to horses and mules in interstate shipments over defendant's railroad.

The petition was in two counts, involving two different shipments. The second count was dismissed and the cause was tried on the first, which alleged damage to seventeen mules and three horses out of a consignment of seventy-five mules and seven horses, in three of defendant's cars from Belton, Cass county, Missouri, to Memphis, Tennessee, on December 25, 1929. It is alleged the said livestock was delivered to defendant in good merchantable condition and that when the shipment was received at Memphis, seventeen head of the mules and three head of horses were in a damaged condition, in that they were lame and bruised about the head, legs and hips, and there were cuts and wounds on their heads and shoulders. Damages were asked in the sum of $1500. The answer was a general denial. A trial resulted in a verdict and judgment for plaintiff, in the sum of $900. Motions for a new trial and in arrest of judgment were overruled, and defendant has appealed.

The record discloses plaintiff resides at Belton, Cass county, Missouri, and, in addition to being engaged in farming, buys and ships horses and mules; that defendant is a common carrier for hire and operates a railroad between Belton, Missouri, and Memphis, Tennessee. The testimony shows the animals were placed in defendant's stock pens at Belton, about two hours before the arrival of the train that was to pick them up; that they were quiet and peaceful while in the pens; that they were loaded into three cars, two being occupied exclusively by mules, while the third contained mules and the seven head of horses. The stock was loaded into the cars by plaintiff and his son. There was also a mixed car of horses and mules belonging to one E.D. Sands who lives at Peculiar, in Cass county, but made this shipment from Belton. Testifying for plaintiff, Sands stated the Jones shipment and his were loaded in the cars at Belton and placed in the same train; that he (Sands) accompanied the shipments by way of Kansas City, but that Jones did not; that at Grandview, Missouri, he aided the conductor in wiring up a loose board on the car in which the Sands stock was being transported; that he did not aid in making any repairs to the Jones cars; that he saw the Jones stock at Grandview and the animals were quiet and peaceful; that he did not see them any more until they reached Memphis. Witness stated some of his own stock was injured in transit, but he made no claim for damages by reason thereof.

Sands testified the shipment reached Memphis in the early evening of Thursday or Friday of the week, and was unloaded in the stock pens of the Guyton Stock Yards Company, a regularly established stock market; that sales were made at said yards by auction, beginning Monday of each week and continuing until the stock offered was disposed of which was usually a matter of three or four days. Witness stated he saw the Jones shipment unloaded at the Guyton yards and that number of the mules was injured, being lame, bruised about the heads and stiff in the legs and hips; that about twenty-five or thirty were so injured; that he was at the yards when the Jones stock sold and that some were sold as low as $42.50 and down to $20 per head, when $50 would have been very cheap for them; that, uninjured, they should have brought $75 to $100 per head.

There was testimony on behalf of defendant that the animals in the Jones shipment were restless and fighting; that at Thayer, Missouri, a division point, an inspector repaired some boards that had been broken and kicked from the siding of one of the cars. No testimony of an eyewitness to the alleged injuries was introduced. Plaintiff and his son testified that the stock in question, while in defendant's stock pens at Belton, were not fighting, but were quiet and peaceable; that they had run together in the feed lot at the farm for a period of about three months immediately before the shipment and none showed any vicious propensities; that plaintiff and his son saw the animals loaded into the cars and none was damaged at the time, but all were in good, merchantable condition. Over defendant's objection there was introduced in evidence an "account sales" of the Guyton Company showing the price brought by each animal at the auction sale, which tended to corroborate plaintiff and witness Sands in respect to the price of each animal at such sale.

At the close of plaintiff's case, and again at the close of all the evidence, defendant asked peremptory instructions in the nature of demurrers, which were overruled. In support of the appeal, defendant makes seven assignments of error which are discussed under four headings, under points and authorities. The first is that the court erred in refusing defendant's instruction in the nature of a demurrer, at the close of all the evidence, because the evidence was insufficient to warrant a finding that defendant was responsible for any damage or injury the animals may have sustained. On this point it is urged that in a shipment of live stock, it is necessary for the plaintiff not only to show that the animals were delivered to defendant in good condition and arrived at destination in a damaged condition, but also to show that such damage was not due to their inherent nature or propensities, but, at least, inferentially, to some improper handling by defendant. [Citing Cash v. Railroad, 81 Mo. App. 109; Cunningham v. Railroad, 167 Mo. App. 273; Bragg v. Payne, 235 S.W. 148; Moran v. Railroad, 255 S.W. 331.]

It is not disputed that only slight evidence is sufficient to create an inference that animals were injured by rough handling, rather than by their inherent nature or propensities. It is insisted that in the case at bar there was no evidence on this point beyond the mere showing the stock was delivered to defendant in good condition and delivered at destination in a damaged condition. It is further pointed out that plaintiff's own witnesses admitted that mules mixed with horses sometimes fight and injure each other while being transported in railroad cars; and that defendant offered evidence to the effect that the animals in question in this case, in fact, had fought and kicked off boards, as per a record made at Thayer, Missouri, yards (not in evidence), as well as the testimony of the conductor who took the cars out of Belton. But this evidence was contradicted by witness Sands who stated the broken board was on the car containing his shipment and not on either containing the Jones shipment. Defendant insists that Sands' testimony on this point is very unsatisfactory, and of no probative force and, therefore, that there was no competent evidence of injury to the animals.

We hold this position unsound. There was substantial evidence the animals were in a damaged condition when unloaded at Memphis. We cannot, of course, pass upon the weight of the evidence. There being substantial evidence to the effect already indicated, we cannot say plaintiff did not make a case for the jury. Plaintiff points out that the testimony shows the horses and mules had run together in the pasture for about ninety days and showed no vicious propensities, either there or while in the stock pens at Belton, and were peaceable; and that the injuries consisted of bruises about their heads, shoulders and hips. It is urged in this situation, the jury well might have concluded the said injuries were due to some negligent act or acts of defendant. It was held in Morrow & France v. Wabash Railroad, 219 Mo. App. 62, 67, 256 S.W. 851:

"The rule is well settled in this State that if the wounded condition of the animal suggests the injuries were received from external violence, during the transportation, and evinces a physical condition which does not usually attend carriage with due care, such will suffice to repel the presumption pertaining to proper vice and cast the burden upon the carrier." [Citing Cunningham v. Wabash Railroad, 167 Mo. App. 273, 282, 283; Cash v. Railroad, 81 Mo. App. 109; Blair Horse & Mule Co. v. Railroad, 180 S.W. 412; Robinson v. Bush, 200 S.W. 757; Moran v. C.B. & Q. Rd. Co., 255 S.W. 331.]

It must be held, therefore, that when plaintiff had proved the animals were delivered to defendant in sound, merchantable condition, and were delivered at destination in a damaged condition, and the injuries were such as do not attend carriage with due care, plaintiff has made a prima-facie case, the burden of proof shifts to defendant, and the question is for the jury.

Directly on this point is the opinion in the case of Cunningham v. Wabash Railroad, 167 Mo. App. 273, 281, 149 S.W. 1151, where it is said:

"If it appears, as it does here, that the animals were in good condition when delivered to the carrier for transportation and that they were severely gashed and wounded upon reaching their destination, the jury may infer from such facts alone that the transportation was not attended with due care. In other words, the cause of the injury may be established from collateral facts and circumstances affording a reasonable inference of negligence, identically as other facts may be established in a suit at law. We have heretofore declared that, where the liability sought to be enforced is that at common law, a prima facie case of negligence, or breach of duty in respect of the transportation of animals, will arise upon showing that the animals were wounded, as by...