Libby v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 23 March 1909
• Parties: LIBBY et al., etc., Appellants, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Respondents
• Court: Missouri Court of Appeals

117 S.W. 659

137 Mo.App. 276

LIBBY et al., etc., Appellants, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Respondents

Court of Appeals of Missouri, St. Louis

March 23, 1909

Appeal from Wayne Circuit Court.--Hon. Jos. J. Williams, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Munger & Hay for appellants.

James F. Green for respondent.

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

OPINION

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 thirty head of steers at Williamsville, Missouri, in good condition, for the purpose of transportation over the defendant's railroad to the National Stock Yards at East St. Louis, Illinois; 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 thirty-one hours therefor, when eight or ten 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 thirty head of cattle referred to in good condition to the defendant at Williamsville, for transportation to the National Stock Yards at East St. Louis, Illinois; 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, Missouri, to the National Stock Yards at East St. Louis, Illinois, the consignment being in care of E. C White & Company, a commission firm located at East St. Louis, Illinois. The cattle were all in good condition at the time of the consignment. The testimony is to the effect that eight or ten hours is the usual and reasonable time for like shipments from Williamsville to the National Stock Yards at East St. Louis, Illinois. It appears in this particular instance the defendant delayed the shipment several hours at Piedmont, Missouri, and again for several hours at De Soto, and again at St. Louis, Missouri, with the result that they did not reach their destination for the market on the day intended. The time consumed in the transportation was thirty-one hours instead of the usual eight or ten 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 eight 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 forty or fifty dollars, it was depreciated because of its crippled condition so that it was sold for five dollars, 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 Amer. and Eng. Ency. Law (2 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 five dollars, because of its injuries. It is a general rule that carriers of live stock are liable like other common carriers, as insurers for loss or injury to the stock entrusted to them for transportation with the exception that they are not liable for injuries occurring through the "proper vice" of the animal being carried, and not through any negligence on the part of the carrier. [5 Amer. and Eng. Ency. Law (2 Ed.), 443; Cash v. Wabash Railroad Company, 81 Mo.App. 109; Hance v. Pacific Express Company, 48 Mo.App. 179.] It appears the crippled steer was in good condition when received by the defendant at Willamsville. Defendant's obligation of insurer imposed upon it the duty to deliver it in good condition at the point of destination, unless its injuries were inflicted through its own proper vice or inherent vicious propensities, or other exceptional causes. In view of the exception to the defendant's obligation as insurer with respect to the proper vice of the animal, the burden of proof is upon the plaintiffs to show that the steer received its injuries through the defendant's negligence. It has been said the burden is upon the plaintiff to show the animal was injured through some human agency. [Hance v. Pacific Express Co., 48 Mo.App. 179.] And the statement seems to be approvingly quoted in Cash v. Wabash R. R. Co., 81 Mo.App. 109, 114. We believe such to be an inaccurate statement of the law for the reason the defendant's obligation of insurer imposed upon it the duty to deliver the animal in good condition at destination, excepting for the intervention of an act of God, the public enemy, the proper vice of the animal, or the act or fault of the owner. [5 Amer. and Eng. Ency. Law (2 Ed.), 233, 234, 235, 243.] This being true, it is immaterial whether the animal was injured by a human agency or otherwise, for if it were not injured as a result of the act of God, the public enemy, its proper vice, or the fault of the owner, the carrier is liable. Those risks and those only are taken by the shipper. To illustrate: suppose, while in possession of the carrier for transportation, the animal was killed by the onslaught of a lion or panther which had escaped from a menagerie. In such case, we apprehend no one would deny the liability of the carrier under its obligation as insurer to make compensation for the loss thus entailed by the beast and entirely without the intervention of any human agency whatever. Therefore, in view of the exception as to proper vice, the true rule is that the burden rests with the plaintiff to show prima facie the animal received its injuries through some other cause than its proper vice, and on this score, very slight proof of negligence is sufficient to transfer to the carrier the duty of coming forward with evidence to the contrary. [5 Amer. and Eng. Ency. Law (2 Ed.), 469, 472.] And it is not necessary to show such fact by express and positive testimony. 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. [Cash v. Wabash R. R. Co., 81 Mo.App. 109; Hance v. Pacific Express Co., 48 Mo.App. 179.] There is no direct testimony whatever as to how the crippled steer was injured. It appears to have been in good condition when delivered to the defendant and severely bruised, skinned, and otherwise crippled when arriving at the point of destination. When these facts are considered together with the fact that thirty-one hours were consumed in transit for a shipment which should have been made in eight or ten hours and that such injuries were unusual, or at least not usually incident to a shipment with due care, we believe the question of how the steer was injured, should be referred to the jury. That is to say, the facts above referred to are sufficient for a prima facie showing that the steer received its...