Nunnelee v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 06 June 1910
• Citation: 145 Mo. App. 17,129 S.W. 762
• Court: Missouri Court of Appeals
• Parties: NUNNELEE v. ST. LOUIS, I. M. & S. RY. CO.

129 S.W. 762

145 Mo. App. 17

NUNNELEE v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

Rehearing Denied July 7, 1910.

1. CARRIERS (§ 121) — TRANSPORTATION OF GOODS — LOSS OCCURRING THROUGH ACT OF OWNER — LIABILITY.

While ordinarily a common carrier which receives goods for shipment is required to deliver them according to agreement, yet, when the owner accompanies them, the general liability is limited to the extent that the carrier is in no sense liable for any injury or loss that may occur through the act of the owner or through any agency that is under his exclusive control.

2. CARRIERS (§ 134) — GOODS BURNED IN TRANSIT — LIABILITY OF CARRIER.

In an action against a carrier for goods burned in transit, where the only way the fire could have originated was from a lighted lantern under the exclusive control of the shipper who was traveling in the car, the carrier could not be held liable without evidence showing that it did as a matter of fact cause the fire to be started from the lantern.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by John H. Nunnelee, as administrator of the estate of Joseph H. Fowlkes, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

David W. Hill, for appellant. James F. Green, for respondent.

COX, J.

Plaintiff filed petition in three counts, in the first of which he charged that defendant was a common carrier, and that he had accepted from the deceased, Joseph H. Fowlkes, certain personal property, therein described, to be carried by defendant from Doniphan, Ripley county, Mo., to Newbern, Tenn., there to be again delivered to Fowlkes; that defendant failed to deliver, and then charges that "the above-described personal property has been wholly lost to deceased and plaintiff as a result of the carelessness and negligence of the defendant, its officers, agents, servants, and employés, in causing and permitting the same to be consumed by fire, or rendered absolutely valueless by having been burned in the defendant's car in its railroad yards at or near Poplar Bluff, Mo., on or about the 20th day of November, A. D. 1907, at which time the owner of said personal property, Joseph H. Fowlkes, was likewise burned to death, all to the damage of the plaintiff in the sum of $1,057.28." The second count of the petition was dismissed by plaintiff before the close of the testimony. In the third count the charge is made that deceased, Fowlkes, had on his person the sum of $300 in money which was consumed in the fire at the time of the burning of the goods described in the first count, and prays judgment for that amount.

The evidence shows that deceased, Fowlkes, was intending to move to Tennessee, and had sent his family there; that his household goods, farm machinery, two horses, some hay, and feed were loaded into a car, under his own supervision, at Doniphan, to be shipped to Tennessee; that deceased, Fowlkes, traveled in the car; that the horses were placed at one end of the car, and the other articles at the other end of the car; that Fowlkes had prepared a place for himself between the two doors of the car, and that he had a lantern. The car was hauled to Neelyville, where it was switched and remained for some little time at night, and while there the deceased was seen out of the car, apparently in good health, and that he returned to the car, had his lantern lighted therein, and was then seen by the agent of the company in the car with the lantern lighted. This car was hauled from there to Poplar Bluff, where it arrived at about 2 o'clock a. m., and was again placed upon a switch. Some time afterwards, during the night, fire was discovered in the inside of the car. When the alarm was given, some parties came to the car, pried the door open, and, when they did so, the fire...