McBeath v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 25 January 1886
• Citation: 20 Mo.App. 445
• Parties: ANDREW C. MCBEATH, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 445

ANDREW C. MCBEATH, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

January 25, 1886

APPEAL from Clinton Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

The facts are sufficiently stated in the opinion of the court??

GEO. S GROVER, for the appellant.

I. As the duty of caring for the animals, while in transit, was, by the special contract, assumed by plaintiff, the burden rested upon him to show that the loss resulted from the negligence of defendant. Without such proof the defendant was entitled to a verdict in its favor. Clark v. R. R., 64 Mo. 448; R. R. v Cleary, 77 Mo. 633; Dawson v. R. R., 79 Mo 296; Lawson on Cont. Carriers, sect. 248. The instruction given for plaintiff to the contrary of this, was erroneous. Cases cited supra.

II. Defendant's refused instructions were correct, and it was error to refuse them. There was no pretense in the case that a notice, as required by the contract, had been given, or any excuse offered for failure to comply with its terms. Such a stipulation was lawful, and the courts of this state will enforce it. Rice v. K. P. Ry. Co., 63 Mo. 314; Dawson v. St. L., K. C. & N. Ry. Co., 76 Mo. 513; R. R. v. Cleary, 77 Mo. 634; Brown v. W., St. L. & Pac. Ry. Co., 18 Mo.App. 568.

No brief on file for the respondent.

ELLISON J.

This action was instituted before a justice of the peace in Clinton county, Missouri, to recover the sum of eighty-five dollars for one cow alleged to have been lost in transit upon the railroad of defendant, on the twenty-sixth day of March, 1881. There was a judgment by default in favor of the plaintiff, before the justice, from which defendant perfected its appeal to the circuit court of Clinton county, Missouri, where judgment was again rendered against defendant, and it appeals to this court.

The undisputed testimony as preserved in the record is, that the shipment was under a written contract, whereby plaintiff agreed to accompany the cattle, load and unload them, and take care of them while in transit, and that in case of loss no damages should be allowed or paid, unless a claim in writing for such loss or damage was made out, verified by affidavit and delivered to defendant's general freight agent at St. Louis, Missouri, in five days after the removal of the stock from the cars. The only proof in regard to notifying defendant was the following testimony of one of the plaintiff's witnesses, to whom the stock was consigned, to-wit:

" The railroad company was notified a short time after the loss was reported. Don't remember whether the notice was written or verbal. Don't remember when the notice was given."

The court...