Nicholson v. St. Louis & S. F. R. Co.

• Decision Date: 10 January 1910
• Citation: 141 Mo. App. 199,124 S.W. 573
• Court: Missouri Court of Appeals
• Parties: NICHOLSON et al. v. ST. LOUIS & S. F. R. CO.

124 S.W. 573

141 Mo. App. 199

NICHOLSON et al. v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

January 10, 1910.

Rehearing Denied January 24, 1910.

1. CARRIERS (§ 117) — FREIGHT — EQUIPMENT.

Common carriers must furnish suitable vehicles for transporting freight, and are liable for losses caused by their failure to do so, though they are entitled to determine, in the first instance, the sufficiency of the vehicles furnished.

2. CARRIERS (§ 156) — EQUIPMENT — DEFECTIVE EQUIPMENT — CARRIER'S LIABILITY.

Where a shipper had bulk corn, which was shipped in a stock car, sacked en route without removing it from the car, and redelivered it for transportation under a bill of lading providing that damage on account of being loaded in a stock car was at the owner's risk, the carrier was not liable for damage to the corn by it being loaded in the stock car.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by W. S. Nicholson and others, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

W. F. Evans, Dana, Cowherd & Ingraham, and Arthur H. Morse, for appellant. Adrian F. Sherman and Edmond C. Fletcher, for respondents.

BROADDUS, P. J.

This is an action for damages, by the shippers against the carrier, to grain, occasioned by failure, it is alleged, of the carrier to provide a proper car for its transportation. The article was shelled corn, and was shipped from Kansas City, Mo., to Mobile, Ala., February 24, 1903. On the 19th day of said month plaintiffs purchased the corn from the Ernst-Davis Grain Company, which was then in a car numbered 49307, on the defendant's track. It had come from a point in Kansas to Olathe by another carrier where it was transferred to defendant's railroad, and from thence to Kansas City. Ernst-Davis Company directed defendant to deliver the car to the plaintiffs for shipment, and at the same time, by request of plaintiffs, they directed defendant to place the car containing the corn at the warehouse of McNulty for the purpose of sacking. The defendant placed the car as directed, where it was sacked by McNulty acting for plaintiffs, and weighed by W. E. Hales, deputy weighmaster of the Board of Trade; the plaintiffs in both instances paying for the service. The sacking and weighing was done in the car where the corn was left, and the car sealed by the deputy weighmaster. According to their usual custom plaintiffs by their agent, Danciger, partly filled in a bill of lading showing the number of the car and its destination. A few days before the shipment, and before J. H. Barr, defendant's agent, signed the bill of lading, Danciger called at his office, and asked if the car would run through to Mobile. Barr told him that it would, and called his attention to the fact that the corn was loaded in a stock car. Barr testified: That Danciger came to his office and gave him the number of the car; that he called his attention to the fact that the car was a stock car; that he seemed somewhat surprised, and wanted to know how a car of bulk corn could be loaded in a stock car; and that he (Barr) told him that he presumed that the car was boxed up. The bill of lading contained the following: "Owner's risk of damage on account of being loaded in stock car." When the corn arrived at its destination it was found to be damaged to the extent of $110. The damage was attributed to the fact that the corn was not sufficiently protected while in transit, because a stock car was not sufficient for that purpose. The consignee paid for the corn, and plaintiffs seek to recover as assignees. Plaintiffs recovered judgment, and defendant appealed.

The first question is one of liability. It is urged that the court should have directed a verdict of the jury for defendant on the case plaintiffs made out. The plaintiffs rely upon the common-law rule that it was the duty of the carrier to have furnished a safe means, such as a box car, for the shipment of the corn, and that, having failed to comply with the law, it is liable for the damages resulting from its failure of duty in that respect. While defendant admits the rule, it insists that it does not govern this case, for the reason that plaintiffs are estopped from claiming its benefits as they, after having been informed that the corn was in a stock car for several days before the bill of lading was signed, had a sufficient length of time for them to have had it placed in a box car before the shipment had started for its destination if they had so desired. That their failure to request a reloading of the corn, taken in connection with the agreement in the bill of lading that they assumed the risk of damage on account of the corn being loaded in a stock car, amounted to a selection on their part of the character of the car in which it was to be carried is contended by defendant. The rule is stated thus: "It is the business of common carriers to have vehicles suitable for the transportation of...