Libby v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 23 March 1909
• Citation: 137 Mo. App. 276,117 S.W. 659
• Parties: LIBBY et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

117 S.W. 659

137 Mo. App. 276

LIBBY et al. v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

March 23, 1909.

Rehearing Denied April 6, 1909.

1. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—NEGLIGENCE.

Where a carrier took 31 hours to transport stock which usually required but 8 or 10 hours, and the stock suffered shrinkage and arrived too late to be placed on the market, which declined, one of the animals being so crippled as to be practically valueless, a prima facie case of negligence was made out.

2. CARRIERS (§ 230) — CARRIAGE OF LIVE STOCK—DELAY—QUESTION FOR JURY.

A carrier of live stock must transport the same within a reasonable time, and where unreasonable delays occur without just cause the question of the carrier's negligence is for the jury.

3 CARRIERS (§ 213) — CARRIAGE OF LIVE STOCK—DELAY.

A shipper of live stock suffering loss by reason of the decline in the market and shrinkage of his cattle, occasioned by the carrier's negligent delay in the transportation, is entitled to recover the loss sustained.

4. CARRIERS (§ 215)—CARRIAGE OF LIVE STOCK —LOSS OR INJURY—LIABILITY.

A carrier of live stock is an insurer against loss or injury to the stock, except such loss as occurs through the intervention of an act of God, the public enemy, the proper vice of the animals, or the act of the owner.

5. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—INJURIES—BURDEN OF PROOF.

A shipper of live stock has the burden of proving that an animal received by the carrier in good condition, and delivered at the point of destination in an injured condition, received its injuries through some cause other than the animals' proper vice, and very slight proof of the negligence of the carrier is sufficient to require the carrier to show its freedom from negligence.

6. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—INJURIES—EVIDENCE.

The cause of an injury to live stock during transportation may be established from collateral

facts affording a reasonable inference of negligence.

7. ACTION (§ 27)—TORT OR CONTRACT—ACTION AGAINST CARRIER.

A shipper may sue the carrier either in tort on the obligation raised by law or on the contract of carriage, and the mere fact that the contract limits the obligations of the carrier does not require the shipper to sue on the contract.

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

A contract for the transportation of live stock, which requires notice of loss or injury to the stock, only requires notice touching loss or injury to the stock, and does not require the shipper to give notice of his loss resulting from the decline in the market price of cattle suffered because of the delay of the carrier in transporting the cattle.

9. CARRIERS (§ 218)—ACTIONS IN TORT—LIMITATION OF LIABILITY—EFFECT.

A shipper of live stock, who sues the carrier in tort, makes out his case by showing that the carrier received the stock in good condition, that it negligently delayed the transportation thereof, and by proving negligent injury to the stock and decline in the market, though the stock was shipped under a contract requiring notice of loss within a specified time.

10. CARRIERS (§ 150)—LIMITATION OF LIABILITY —NEGLIGENCE.

A carrier cannot contract against its negligence.

11. CARRIERS (§ 154)—LIMITATION OF LIABILITY—CONSIDERATION.

A stipulation in a shipping contract that the carrier shall not be liable for injury unless notice thereof is given within a specified time operates as a limitation on the common-law liability of the carrier, and to be valid it must be supported by an independent consideration.

12. CARRIERS (§ 227)—ACTIONS FOR INJURIES TO STOCK—PLEADING LIMITATIONS OF LIABILITY.

Under Rev. St. 1899, § 604 (Ann. St. 1906, p. 631), authorizing a general or specific denial and requiring the statement of any new matter constituting a defense, a carrier, when sued in tort by a shipper of live stock, must affirmatively plead the contract of carriage requiring the giving of notice of loss or injury to the stock.

13. CARRIERS (§ 218) — CARRIAGE OF LIVE STOCK—LIMITATION OF LIABILITY—ACTION IN TORT.

The mere fact that the action against a carrier of live stock sounds in tort does not avoid the effect of the special contract of carriage, if properly pleaded.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by G. W. Libby and others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant plaintiffs appeal. Reversed and remanded.

Munger & Hay, for appellants. James F. Green, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to the plaintiffs because of the defendant's breach of duty in respect of its obligation as a common carrier. At the conclusion of all the evidence, the court directed a verdict for the defendant, and plaintiffs prosecute the appeal.

The petition is in two counts. The first count alleges, substantially: That plaintiffs delivered to the defendant 30 head of steers at Williamsville, Mo., in good condition, for the purpose of transportation over the defendant's railroad to the National Stock Yards at East St. Louis, Ill.; that the defendant accepted the consignment for the purpose of transportation in due time and with proper care; that being unmindful of its obligation in that behalf, defendant negligently delayed the transportation so as to consume 31 hours therefor, when 8 or 10 hours was a reasonable time; that by reason of the defendant's negligent and unreasonable delay, the cattle were not placed upon the market on the day they should have been, and were greatly depreciated in weight and appearance by the long delay without food or water. It is averred the market, on the character of cattle involved, was considerably lower on the day on which the defendant delivered the cattle than the day prior, on which they should have been delivered in due course. In the second count of the petition, it is stated, substantially: That plaintiffs delivered the 30 head of cattle referred to in good condition to the defendant at Williamsville, for transportation to the National Stock Yards at East St. Louis, Ill.; that the defendant accepted the consignment, and thereby assumed the obligation to safely transport and deliver the cattle in good condition at the place of destination; that wholly disregarding its duty in that behalf, and in violation of the law, defendant so carelessly and recklessly transported the cattle as to maim, skin, bruise, wound, and injure all of them, and especially cripple and injure one of said steers so as to materially depreciate the value of all. The answer was a general denial.

On the part of plaintiffs, the evidence tended to prove that plaintiffs delivered the cattle referred to to the defendant, and defendant accepted the shipment for transportation from Williamsville, Mo., to the National Stock Yards at East St. Louis, Ill.; the consignment being in care of E. C. White & Co., a commission firm located at East St. Louis Ill. The cattle were all in good condition at the time of the consignment. The testimony is to the effect that 8 or 10 hours is the usual and a reasonable time for like shipments from Williamsville to the National Stock Yards at East St. Louis, Ill. It appears in this particular instance the defendant delayed the shipment several hours at Piedmont, Mo., and again for several hours at De Soto, and again at St. Louis, Mo., with the result that they did not reach their destination for the market on the day intended. The time consumed in the transportation was 31 hours, instead of the usual 8 or 10 hours. The delay was such as to preclude the cattle from reaching the market on the day after their shipment, as was anticipated by the plaintiffs. They actually reached the stockyards about 8 o'clock that night, too late for the market of that day, and plaintiffs were therefore compelled to place and sell them upon the market of the following day. The market on the following day, or the day on which the cattle were sold, ranged considerably lower on this class of cattle than on the day previous. This fact induced considerable loss to the plaintiffs on the shipment. It is also shown that the cattle were greatly gaunted and suffered considerable shrinkage from the long time in transit without food and water. There is no evidence whatever tending to support the averments in the second count of the petition with respect to all the cattle being maimed, skinned, bruised, etc. It appears, however, that one of the steers referred to in the second count was so maimed, bruised, and crippled in some manner during the transit as to practically destroy its value; that is to say, instead of selling at its reasonable value of $40 or $50, it was depreciated because of its crippled condition so that it was sold for $5, which amount was its reasonable value after being crippled. These facts certainly made a prima facie case for the plaintiffs. Under the law it was the duty of the defendant to transport the stock within a reasonable time, and where it appears unreasonable delays occurred without just cause therefor, as in this case, the question of defendant's negligence in respect of its obligation to transport the stock within a reasonable time should be referred to the jury. Sloop v. Wabash R. R. Co., 93 Mo. App. 605, 67 S. W. 956; Leonard v. C. & A. Ry. Co., 54 Mo. App. 293; 5 Am. & Eng. Enc. Law (2d Ed.) 450. If the plaintiffs suffered a loss by reason of the decline in the market and shrinkage of their cattle, and this loss was induced because of the defendant's negligent delay in the transportation, it is a loss for which the defendant should make compensation. Sloop v. Wabash R. R. Co., supra.

Now touching the matter of the one steer which was so crippled as to depreciate its value; that is to say, the crippled steer which the plaintiffs sold for $5 because of its injuries. It is a general rule that carriers of live stock are...