Merritt Creamery Co. v. Atchison, Topeka. & Santa Fe Ry. Co.
| Decision Date | 01 November 1909 |
| Citation | 122 S.W. 322,139 Mo.App. 149 |
| Parties | MERRITT CREAMERY CO., Appellant, v. ATCHISON, TOPEKA & SANTA FE RY. CO., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
AFFIRMED.
Judgment affirmed.
Allen & Allen and Allen, Gabbert & Mitchell for appellant
(1) The court erred in giving defendant's peremptory instruction because there was evidence which should have been submitted to the jury, tending to show that the loss was due to defendant's negligence. That defendant's officers and servants knew or could have known of the approach of the flood in time to have saved the goods. Davis v Railroad, 89 Mo. 347; Pinkerton v. Railway, 117 Mo.App. 288; Railroad v. Beck (Pa.), 11 Am. St. R 924. (2) The instructions offered by plaintiff and refused by the court correctly stated the law of the case, and correctly applied it to the facts. Smith v. Railroad, 91 Ala. 455, 24 Am. St. R. 929, 5 A. and E. Encyc. Law (2 Ed.), 235. (a) Question of inevitable accident one for the jury. Elliott v. Rossell, 10 Johns. (N. Y.) 1. (b) Burden of proof of inevitable accident on defendant. Railroad v. White, 88 Ga. 805; 55 A. and E. Railroad Cases, 682. (3) The court erred in admitting the testimony of the contents of the statement to prove the location and number of cars in the Argentine yards. 9 A. and E. Encyc. Law (2 Ed.), 878-939; Milling Co. v. Walsh, 108 Mo. 277; Barons v. Brown, 25 Kan. 410.
Thomas R. Morrow and Culver & Phillip for respondent.
(1) It was established by defendant, and undisputed by plaintiff, that the butter was destroyed by an act of God--the unprecedented flood at Kansas City of 1903. The defendant, therefore, is not liable unless the defendant was guilty of negligence in failing to anticipate the coming of a flood of sufficient volume to submerge the butter in time to have removed it out of danger. The burden of proving such negligence was on the plaintiff, and having failed to offer any substantial evidence in support thereof, the trial court properly refused to submit the issue to the jury. Lamar v. Railway, 117 Mo.App. 453; Lamar v. Railway, 131 Mo.App. 115; Lightfoot v. Railway, 126 Mo.App. 532; Brewing Ass'n v. Talbot, 141 Mo. 674; Moffatt v. Railway, 113 Mo.App. 544; Green v. Railway, 108 Mo.App. 565; Cattle Co. v. Railway, 135 F. 135; Rogers v. Railroad, 75 Kan. 222. (2) Even if defendant was negligent in not forwarding the butter in the train of "carloads" that left at 1 p. m.--the last train out of the yards--such negligence was not the proximate cause of the loss, and furnishes no ground for a recovery. Lamar v. Railway, 117 Mo.App. 458; Moffatt v. Railway, 113 Mo.App. 544; Cattle Co. v. Railway, 135 F. 135. (3) The court did not err in allowing proof of the record made in the ordinary course of business, even before the flood had subsided, or the car moved to show the location of the car of butter in the defendant's yards at the time of the flood. Milling Co. v. Walsh, 108 Mo. 277; Seligman v. Rogers, 113 Mo. 649; Borgess Inv. Co. v. Vette, 142 Mo. 572.
Plaintiff shipped in one of defendant's cars a consignment of butter from Great Bend, Kansas, to Boston, Massachusetts. The car left Great Bend on the night of May 27, 1903, and arrived in defendant's freight yards near Kansas City on the morning of May 30th, where, ordinarily, the car would be made a part of a train for eastern points. But in this instance the car was not taken out of Kansas City and on the night of May 30th, or during May 31st, the butter was destroyed by a flood. Plaintiff brought this action for damages. The defense was that the flood was an act of God. The plaintiff met this by the contention that defendant knew of the coming of the flood, or by proper diligence should have known it, in time to have taken the butter to a place of safety. At the trial the court gave a peremptory instruction sustaining defendant's case and plaintiff duly appealed to this court.
That the flood here involved was of such unprecedented, terrific and destructive nature as to properly be designated as the act of God, has been several times determined by this and other courts in cases arising over shipments of freight destroyed or lost in the different railway yards at and near Kansas City. [Moffatt v. Railway, 113 Mo.App. 544; Lamar v. Railway, 117 Mo.App. 453; Lightfoot v. Railway, 126 Mo.App. 532; Empire Cattle Co. v. Railway, 135 F. 135; Rogers v. Railway, 75 Kan. 222.] See also Greer v. Railway, 108 Mo.App. 565, as to the same flood at St. Louis.
But plaintiff insists that defendant had warning of the coming of the water in time to have saved the butter and that it negligently laid by and failed to move the car out of danger. Plaintiff bases much of its case on the law as stated in Pinkerton v. Railway, 117 Mo.App. 288. But in our opinion the facts of this case do not bring it within the rule in the Pinkerton case.
The law applicable here has been recently so fully discussed in the cases above cited that it can serve no purpose to restate it at this time, especially in a case involving the same flood at practically the same place.
Plaintiff's entire case turns on a mere question of fact: that is, did defendant know or could it have...
To continue reading
Request your trial