Missouri Pac. Ry. Co. v. Wichita Wholesale Grocery Co.

• Decision Date: 06 July 1895
• Citation: 55 Kan. 525,40 P. 899
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. THE WICHITA WHOLESALE GROCERY COMPANY
• Court: Kansas Supreme Court

40 P. 899

55 Kan. 525

THE MISSOURI PACIFIC RAILWAY COMPANY v. THE WICHITA WHOLESALE GROCERY COMPANY

Supreme Court of Kansas

July 6, 1895

Error from Sedgwick Court of Common Pleas.

On the 26th of September, 1889, The Wichita Wholesale Grocery Company commenced its action against The Missouri Pacific Railway Company, alleging, among other things, that on the 20th of April, 1889, the railway company was a common carrier, operating a railway in and through the city of Wichita, in this state; that it received on that date two car-loads of sugar of the value of $ 6,252.50, from the St Louis & San Francisco Railway Company, in the city of Wichita, at the point of intersection of that railroad with the railway of the defendant, to be transported and delivered to the grocery company in Wichita for a valuable consideration paid by such company; that the railway company failed and neglected to transport and deliver the sugar to the grocery company as it undertook and agreed to do, and that thereby the grocery company lost the sugar, to its damage in the sum of $ 6,252.50, for which the grocery company demanded judgment. Trial had before the court with a jury April 28-30, 1890. The jury returned a verdict for the grocery company for $ 6,531.25, and also made special findings of fact.

The following, among other facts, were proved upon the trial: On or about the 26th of July, 1889, the two car-loads of sugar for which this action was brought, were transported to the city of Wichita by the St. Louis & San Francisco Railway Company. This sugar was consigned by the Louisiana Sugar Refining Company to the Wichita Wholesale Grocery Company and was transported from New Orleans to Paris, Tex., over the Texas & Pacific railroad, and from that point to Wichita over the Frisco railroad. Under the contract for the shipment of this sugar, the two roads named were to transport it from New Orleans to Wichita, and deliver it to the Wichita Wholesale Grocery Company. The building occupied by the grocery company at Wichita fronted upon Water street, and extending from Water street west to an alley. About two years prior to the loss of the sugar complained of, a spur-track had been constructed by the Missouri Pacific Railway Company in the alley at the rear of the building occupied by the grocery company. This track connected with a switch of the railway company. Upon the spur-track at the rear of the store all cars containing goods for the grocery company were placed, when delivered at the building or store of the company. At the intersection of the Santa Fe railroad and the Missouri Pacific railway at Wichita a Y had been constructed. The Frisco road at Wichita was connected with the Santa Fe road, and had the use of the Y. The place of business of the grocery company was about a mile distant from the Frisco road, and it was the practice of that railroad company when it brought goods to Wichita, which it was to deliver to the grocery company at its building or store, to place the cars upon the Y in question, and then notify the agent of the Missouri Pacific Railway Company that the cars were on the Y to be placed on the spur-track. The switch-engine would then be sent to the Y where it would get the cars and place them upon the spur-track at the rear of the building or store of the grocery company, the St. Louis & San Franciso railway paying the switching charges. The cars containing the sugar arrived at Wichita on Saturday afternoon, the 27th of July 1889, over the Frisco railroad. After the cars reached Wichita, the agent of the Frisco road notified the grocery company that the cars were there, and was instructed by that company to place them on the Y. The cars were placed upon the Y late on Saturday night. The Missouri Pacific Railway Company was notified that the cars were on the Y, and within the usual time sent its switch-engine to the Y and switched the cars upon the spur-track at the rear of the building of the grocery company. This was on the afternoon of Sunday, the 28th of July. The cars were placed upon the spur-track at exactly the same point they had always been placed under similar circumstances. The grocery company was in the habit of permitting the cars to stand on the spur-track from one to three days before unloading. The Missouri Pacific Railway Company never unloaded the cars or broke the seals. Cars had been placed in the same manner on the same spur-track on a previous Sunday, but it does not appear that plaintiffs ever broke the seals, unloaded any freight, or exercised any actual control over such cars except during business hours of business days. Some time on Monday morning of the 29th of July, the store-building of the grocery company and the two car-loads of sugar were burned. It is not claimed that the Missouri Pacific Railway Company was in any manner responsible for this fire, or that it was in any manner negligent concerning the same. Subsequently judgment was rendered upon the verdict in favor of the grocery company and against the railway company for $ 6,531.25 with costs. The Railway Company excepted, and brings the case here.

Jugdment affirmed.

J. H. Richards, and C. E. Benton, for plaintiff in error.

J. D. Houston, and W. E. Stanley, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

Three principal questions are presented by the record which include all the various matters discussed in the briefs, and will be all it will be necessary for us to consider.

I. Did the defendant company incur the liability of a common carrier under the facts of this case? The sugar was consigned by the ...