Lupe v. Atlantic & Pacific R.R. Co.

• Decision Date: 14 November 1876
• Citation: 3 Mo.App. 77
• Court: Missouri Court of Appeals
• Parties: JAMES LUPE, Respondent, v. ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

3 Mo.App. 77

JAMES LUPE, Respondent,

v.ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 14, 1876.

1. In Missouri a railroad company, when engaged in the business of carrying cattle, is a common carrier.

2. The duties of a common carrier do not originate in contract; and, where his liability has been limited by contract, it is not necessary, in an action against the carrier, to sue on the contract, but it is incumbent upon him to show how far his liability was limited by such contract.

3. The liability of a common carrier cannot be so limited by contract as to shield him, where the loss was occasioned by his negligence; and, upon the question of negligence, the burden of proof is upon the carrier.

APPEAL from St. Louis Circuit Court.

Affirmed.

Litton & Portis, for appellant, cited: Reed v. St. Louis, Kansas City & Northern R. R. Co., 59 Mo. 206; Bankard v. Baltimore & Ohio R. R. Co., 34 Md. 197; Lamb v. Camden & Amboy R. R. Co., 46 N. Y. 279; Cochrane v. Dinsmore, 49 N. Y. 249; Farnham v. Camden R. R. Co., 55 Pa. St. 53; Patterson v. Clyde, 57 Pa. St. 500; Railroad v. Reeves, 10 Wall. 176; Kansas Pacific R. R. Co. v. Reynolds, 8 Kan. 641; French v. Buffalo & Erie R. R. Co., 41 N. Y. 108; Lake Shore & Michigan Southern R. R. Co. v. Perkins, 25 Mich. 329; Michigan Southern & Northern Indiana R. R. Co. v. McDonough, 21 Mich. 165; Illinois Central R. R. Co. v. Owens, 53 Ill. 391; Wag. Stat., 1022, sec. 51; Dougherty v. Matthews, 35 Mo. 520; Harper v. Indiana R. R. Co., 44 Mo. 488; Eyerman v. Mt. Sinai Cemetery Assn., 61 Mo. 489; Kimball v. Rutland & Burlington R. R. Co., 26 Vt. 248.

Davis & Smith, for respondent, cited: Levering v. Western Transp. and Ins. Co., 42 Mo. 88; Wolff v. The American Express Co., 43 Mo. 421; Ketchum v. The American Merchants' Union Express Co., 52 Mo. 390; Read v. The St. Louis, Kansas City & Northern R. R. Co., 60 Mo. 199; Virginia & Tennessee R. R. Co., v. Sayers, Am. Law Reg. (May, 1876) 297; York County v. Central R. R. Co., 3 Wall. 113; Steamboat New World v. King, 16 How. 469, 494; Railroad Co. v. Lockwood, 17 Wall. 357; Farnham v. Camden R. R. Co., 55 Pa. St. 62; Pennsylvania R. R. Co. v. Henderson, 51 Penn. 315; Davison v. Graham, 2 Ohio St. 131; Walsh v. Pittsburg, Ft. Wayne & Chicago R. R. Co., 10 Ohio, 76; Jones v. Voorhees, 10 Ohio, 145; 21 Ohio, 722; 19 Ohio, 221-260.

BAKEWELL, J., delivered the opinion of the court.

The petition in this case alleges that defendant was a common carrier of freight for hire; that on December 23, 1872, it received from plaintiff sixty-four head of cattle, the property of plaintiff, worth $100 per head, which, for a valuable consideration, it agreed to carry for plaintiff from Lamont, a station on the road of defendant, to St. Louis, in a reasonable time after the receipt thereof; that twenty hours was the usual and reasonable time occupied in the transportation of such freight between said points; that defendant did not deliver said cattle in a reasonable time, but conducted itself so carelessly and negligently in its business as carrier that said cattle were not delivered until fifty-eight hours after they were received by defendant, but detained for twenty-three hours at Tipton, and were there exposed and unprotected; and that defendant refused and neglected to take said cattle out of their cars and feed them, and refused to allow the servants of plaintiff to do so; that by reason of this delay and detention one of said cattle, worth $100, was wholly lost, another was damaged to the amount of $70, and the remaining fifty-eight head injured to the amount of $300. He asks judgment for $470.

There is a second count, alleging a similar state of facts: a delivery at Lamont, on January 22, 1873, of sixteen head of cattle, worth $80 per head, which were not delivered at St. Louis until forty-eight hours after the date of shipment, and which, by the negligence of defendant, were detained eighteen hours at Kirkwood, by reason of which one of said cattle was a total loss, another was damaged to the amount of $52.50, and the remaining fourteen head were damaged to the amount of $140. Judgment, in this count, is asked for $370.

The answer of defendant denies all the material allegations of the petition, and further says that the cattle were not shipped under the contract set up in the petition, but under a written contract, by the terms of which defendant was released from all liability for the acts complained of.

There was a verdict and judgment for plaintiff, and the cause is brought here by appeal.

The evidence for plaintiff was to the effect that at the time of the first shipment, in December, the weather was extraordinarily cold; that the machinery of the locomotive became disordered through the extreme cold; that there was a consequent delay of several hours at Tipton, and another long delay at Bonnett's Mills whilst waiting for passenger trains; that, during the time, plaintiff could not feed the cattle, as he was not allowed to take them out of the cars; that they were much exposed and damaged, substantially as stated in the petition. As to the shipment in January, plaintiff showed that there was a very long delay at the tunnel in Kirkwood; that the weather was unusually cold, and the snow very deep; and that the cattle were damaged substantially as alleged in the petition. It was shown that the cattle belonged to plaintiff, and were shipped from his farm by his son, acting as his agent.

At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to the evidence, which was refused.

Defendant then introduced in evidence two written instruments, signed by the respective agents of plaintiff and defendant, being the customary “live-stock contracts” of defendant, and which purport to set out the terms on which these two lots of cattle were shipped and received. These contracts, which appear from the evidence to be printed blanks which are filled in with dates, etc., at the time of each shipment, provide that:

“When live stock is shipped, the owner or his agent is to feed, water, and take care of his stock at his own expense and risk, and is to assume all risk of injury or damage the animals may do to themselves or to each other, or which may arise from delay of trains. Agents of the company are not authorized to agree to forward live stock to be delivered at any specific time, nor are they authorized to agree to furnish cars for shippers to load at any stated time.” It is further agreed: “That the party of the first part will forward to the party of the second part the stock mentioned, at specified rate per car, which is a special rate made expressly in consideration of this agreement, in consideration of which the party of the second part agrees to take care of said freight while on the trip, and load and unload the same at his own risk and expense, and that the party of the first part, and connecting lines over which such freight may pass, shall not be responsible for any loss, damage, or injury which may happen to such freight in loading, forwarding, or unloading; by suffocation or other injury caused by overloading cars; by escapes from any cause whatever; by any accident in operating the road, or delay caused by storm, fire, failure of machinery or cars, or obstruction of track from any cause, or by fire from any cause whatever, or by any other cause except gross negligence; and that said party of the first part and such connecting lines shall be deemed merely forwarders, and not common carriers, and only liable for such loss, damage, injury, or destruction of such freight as may be caused by gross negligence only, and not otherwise; and the said party of the second part agree to assume all risk of damage or injury to, or escape of, the live stock, which may happen to them while in the stock-yards awaiting shipment. It is also further agreed between the parties hereto that the person or persons riding free under this contract, in charge of stock, do so at their own risk of personal injury from...