Lightfoot & Son v. St. Louis & San Francisco Railroad Co.
| Decision Date | 07 October 1907 |
| Parties | LIGHTFOOT & SON, Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
REVERSED.
Judgment reversed.
L. F Parker, Hunt C. Moore and I. P. Dana for appellant.
The court should have directed a verdict for defendant because (1) there was no evidence that defendant was in any respect negligent with regard to plaintiff's freight, and (2) the undisputed testimony showed that the proximate cause of damage to the eggs was an act of God--the unprecedented flood of 1903. Moffatt Company v. Railway Co., 113 Mo.App 549; Woolsey Co. v. Railroad, 113 Mo.App. 651; Lamar Mfg. Co. v. Railroad, 117 Mo.App. 453; Empire & Co. v. Railroad, 135 F. 135, 147 F. 457; Rodgers v. Railroad, ___ (Kan.) ___.
Joseph S. Rust, for respondents, filed argument.
--Action to recover damages alleged to have been caused by the negligent delay of defendant, a common carrier, in the transportation of a car of eggs shipped by plaintiffs from Ash Grove, Missouri, to Chicago. The answer, in addition to a general denial, contains an averment that the injury to the property was the direct result of an act of God. At the close of the evidence, defendant's request for a peremptory instruction was refused and the case was submitted to the jury on the theory that the evidence afforded room for a reasonable difference of opinion on the issue of the proximate cause of the injury. That issue was resolved in favor of plaintiffs who recovered judgment from which defendant prosecutes this appeal.
The evidence most favorable to plaintiffs tends to show that in the course of transportation the car arrived at Kansas City early in the morning of May 30, 1903, over defendant's road, and should have been delivered to the connecting carrier during that day in time to depart on an evening train for Chicago, but that defendant neglected to make such delivery and early the next morning, a great flood inundated its yards in Kansas City, partly submerged the car and greatly damaged the eggs.
The facts before us are similar in essential particulars to those considered in the case of Moffatt Commission Co. v Railroad, 113 Mo.App. 544, and for the reasons expressed in that case and in the later cases of Pinkerton v. Railroad, 117 Mo.App. 288, and Lamar Mfg. Co. v. Railroad, 117 Mo.App. 453, we find no difficulty in reaching the conclusion that the negligence, if any, of defendant in delaying the car at Kansas City, was but a remote cause of the injury, the direct cause being the flood which appeared so suddenly and with such magnitude and force that its advent could not be anticipated nor its consequences averted by the exercise of human care and foresight. Plaintiffs vainly endeavored to establish negligence on the part of defendant which cooperated with this act of God by drawing from its officers who testified as witnesses the admission that they knew from newspaper reports the watershed of the Missouri and Kansas rivers had been, and was, receiving extraordinary rainfall, that both rivers were greatly swollen and that their waters were expected to continue to rise. But, to say from these facts (as we must to sustain the judgment), that defendant, in the exercise of care should have anticipated the suddenness and magnitude of...
To continue reading
Request your trial