Moffatt Commission Co. v. Union Pacific Railway Company

• Decision Date: 05 June 1905
• Citation: 88 S.W. 117,113 Mo.App. 544
• Parties: MOFFATT COMMISSION COMPANY, Appellant, v. UNION PACIFIC RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

88 S.W. 117

113 Mo.App. 544

MOFFATT COMMISSION COMPANY, Appellant, v. UNION PACIFIC RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 5, 1905

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

AFFIRMED.

Judgment affirmed.

Harkless Crysler & Histed for appellant.

(1) The court erred in entering judgment in favor of the defendant in the case. (2) The court erred in giving the declarations of law requested by the defendant.

N. H Loomis and I. N. Watson for respondent.

(1) Defendant had no reason to apprehend that the flood would reach the cars located where they were on May 29. Hence there is no ground of negligence shown in not delivering the cars to the Hannibal & St. Joe Ry. Co., for shipment, as directed. (2) Mere delay, unless it is for an unreasonable time, does not constitute negligence. The defendant must know, or must reasonably apprehend, that the delay or exposure of the property would naturally, or probably, result in loss or damage to the goods in its possession. The chief element that constitutes negligence is that the carrier ought to have reasonably apprehended that delay and exposure would produce damage to the property in its possession. Clark v Railway, 39 Mo. 184; Wolf v. Express Co., 43 Mo. 421; Reed v. Railroad, 60 Mo. 199; Pruitt v. Railway, 62 Mo. 527; Davis v. Railway, 89 Mo. 340; Davis v. Railway, 13 Mo.App. 453; Associations v. Talbot, 141 Mo. 674; Ray on Negligence of Imposed Duties, pp. 133, 134. (3) The mere delay of one day was not concurring negligence, which, combined with the act of God in producing the injury. The act of God was of such an overwhelming and destructive character, that independent of any negligence on the part of the defendant, it would have produced the same results, and in such case the defendant would not be liable. Colman v. Railway, 36 Mo.App. 491; Railway v. Columbia, 65 Kan. 790; Gillespie v. Railway, 6 Mo.App. 559; Brash v. St. Louis, 161 Mo. 438; Henry v. Railway, 70 Mo. 288; Herr v. Lebanon, 149 Penn. St. 222, 16 L. R. A. 106; Sowles v. Moon, 63 Vt. 322, 21 L. R. A. 723.

OPINION

ELLISON, J.

This action is to recover damages by reason of the negligence of defendant in delaying the delivery of two cars of wheat whereby they were destroyed by a flood of such unprecedented character as to be admitted to be an act of God. The judgment in the trial court was for the defendant.

It appears that two cars of wheat were shipped by different persons over defendant's road to Kansas City, Missouri. That one car was consigned to the Murphy Grain Company and the other to the Benton Grain Company. Each of these companies had samples of the grain on May 28, 1903, at the board of trade. Plaintiff bought the wheat from these samples on that day and ordered the grain companies to send the cars to the yards of the Hannibal and St. Joseph Railroad Company. It is a matter of dispute as to what time in the afternoon of the 28th the defendant got the order. It was the custom of the company, and perhaps the expectation of parties dealing with it, to "card" such cars for transfer next day, when the order was given before four o'clock the preceding afternoon. If the order was given after four o'clock it could not be carried out until the second day. The cars could have been transferred the next day (the 29th) after the order given at the board of trade, but on the next day (the 30th) the great flood of 1903, caused by the overflow of the Missouri and Kansas rivers, suddenly advanced to such unprecedented stage as to make it impossible to move the cars, and it finally reached such height as to practically destroy the grain. Plaintiff does not claim that the cars could have been moved on or after the 30th, but bases its right to recover solely on the charge that defendant was negligent in not transferring them on the 29th.

1. In view of our conclusions as to the law of the case, we will assume that defendant got the order to transfer the cars from its track to the yards of the Hannibal company in time on the afternoon of the 28th to have made the transfer, in usual course of such business, on the 29th, and that in not doing so it was guilty of negligence. Is the defendant liable on account of such negligence for a loss occasioned by the act of God?

It is generally stated to be the rule of law, and it is so held in this state, that where there is negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the person guilty of the negligence would be liable. [Davis v. Railway, 89 Mo. 340; Pruitt v. Railway Co., 62 Mo. 527; Coleman v. Railway Co., 36 Mo.App. 476.] But the injury must not be too remote. It must be a natural and probable consequence of the negligence. That is to say, the injury must have some natural connection with the negligence in the probable course of affairs. [Holwerson v. Railway, 157 Mo. 216; Am. Brewing Co. v. Talbot, 141 Mo. 674, 42 S.W. 679.] If the injury, as a consequence of the negligence, is beyond the usual experience and expectation of mankind, there ought not to be a liability. It would not be improper to ask the question: What are the probable consequences which might happen from the neglect? not what are the possible consequences. [Stone v. Railway Co., 171 Mass. 536.] In Scheffer v. Railway, 105 U.S. 249, Scheffer was injured through the negligence of the railway company, so that he became insane and committed suicide. It was held that the death in that manner was not the natural and probable consequence of the negligence and could not reasonably have been foreseen or expected.

It might be negligence to delay putting certain goods under shelter in the month of July to protect them from rain or thieves; but if left out and the unheard of occurrence (in this climate) of a freeze at that season was to occur and destroy them, could there be any natural connection between the neglect and the loss? And so it has been held in this State that where the carrier negligently delayed the transportation of goods, so that the public enemy came upon him and took them from him, he was not liable; it not being shown that he knew of the presence of the hostile force. [Clark v. Railway Co., 39 Mo. 184; Ballentine v. Railway, 40 Mo. 491.] The same principle is announced in an interesting case in Pennsylvania: Morrison v. Davis, 20 Pa. 171. And in Denny v. Railway Co., 13 Gray 481, which, as in this case, was where a flood injured goods which would not have been exposed but for the carrier's delay, yet he was held not liable. And so in the like case of Railroad Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909. In Morrison v....