Nairn v. Missouri, K. & T. Ry. Co.

• Decision Date: 02 December 1907
• Citation: 126 Mo. App. 707,106 S.W. 102
• Court: Missouri Court of Appeals
• Parties: NAIRN v. MISSOURI, K. & T. RY. CO.

106 S.W. 102

126 Mo. App. 707

NAIRN v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. CARRIERS — INJURY TO GOODS — INFERENCE OF CARRIER'S NEGLIGENCE.

Where goods, when delivered to a carrier, are in good condition, and are in a damaged condition when delivered to the consignee, it may be inferred that they became damaged while in the carrier's charge and that the damage was the result of its negligence, since with proper equipment and handling freight is ordinarily not substantially injured in shipment.

2. SAME — NOTICE OF DAMAGE — WAIVER.

Though a contract of shipment requires written notice of claim for damages to be made within 30 days, a notice is unnecessary where the carrier's agent attended the opening of the car with the consignee, listed the damaged goods and made report thereof to the carrier, who entered upon an investigation of the damages, and did not object to the form of notice.

3. PLEADING — ALLEGATIONS — INTENDMENTS IN FAVOR OF PLEADINGS.

Where trial is entered upon without a demurrer, every intendment will be made in favor of the pleading.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

S. W. Nairn against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. F. G. Harris, for respondent.

ELLISON, J.

Plaintiff shipped a lot of household goods from Pinckneyville, Ill., to Columbia, Mo., and, when received by him at the latter place, they were in a damaged condition. He charges that the damage was caused by the defendant, and brought this action on account thereof. He prevailed in the trial court.

It appears that the Illinois Central Railroad was the initial carrier; that it transported the car in which the goods were placed to the Mississippi river, where it was received by the Bridge Terminal Railway Company, and taken to St. Louis, where it was received by this defendant and transported to Columbia. There was evidence in plaintiff's behalf tending to show that, when the goods were shipped at Pinckneyville, they were in good order and condition; that when they were received by plaintiff at Columbia they were badly damaged. The car, judging from condition of the contents, presented an appearance as though it had been in a wreck, or off of the track. There were various estimates of the amount of damage; some of the evidence tending to show a greater amount than was allowed the plaintiff by the verdict. The contract of shipment contained the letters "O. R." and "S. L. C.," which, according to testimony, indicated that the shipment was made on the "owner's risk" and on the "shipper's load and count." Notwithstanding such provisions the defendant would be liable for negligence. But defendant claims there was no showing of negligence. The plaintiff relied upon his showing of the delivery of the goods in good condition to the Illinois Central Railway, of their delivery to the Bridge Railway, and then, with no change in their condition appearing, their delivery to this defendant, who delivered them to plaintiff. Defendant being the last carrier, it is conceded that the presumption would ordinarily obtain that it injured the property. But it contends that, the goods...