Nurseries v. New York, Chicago and St. Louis Railroad Co.

• Decision Date: 05 May 1925
• Citation: Nurseries v. New York, Chicago and St. Louis Railroad Co., 273 S.W. 410, 217 Mo.App. 31 (Mo. App. 1925)
• Parties: MOUNT ARBOR NURSERIES, Respondent, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, and CHICAGO BURLINGTON AND QUINCY RAILROAD COMPANY, a Corporation, Appellants.
• Court: Missouri Court of Appeals

273 S.W. 410

217 Mo.App. 31

MOUNT ARBOR NURSERIES, Respondent, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a Corporation, and CHICAGO BURLINGTON AND QUINCY RAILROAD COMPANY, a Corporation, Appellants.

Court of Appeals of Missouri, St. Louis

May 5, 1925

Appeal from the Circuit Court of Marion County.--Hon. Charles T Hays, Judge.

REVERSED as to Chicago, Burlington and Quincy R. R. Co.

AFFIRMED as to New York, Chicago and St. Louis R. R. Co.

REVERSED as to Chicago, Burlington and Quincy R. R. Co. AFFIRMED as to New York, Chicago and St. Louis R. R. Co.

H. J Nelson, J. G. Trimble, Glahn I. Diemer and J. A. Lydick for appellant, Chicago, Burlington & Quincy Railroad Company.

J. C James, of Counsel.

(1) Defendant's peremptory instruction at the close of plaintiff's case and again at the close of all the evidence should have been given. (a) It is well settled that the liability of a carrier of an interstate shipment is to be determined by the laws of the United States, the provisions of the bills of lading and the common law as applied in the Federal courts. State Laws and decisions of State courts holding a different view have no application. C. & N.W R. R. Co. v. Whitnack Produce Co., 258 U.S. 369; St. Louis Iron Mountain & Southern Ry. v. Starbird, 243 U.S. 592; N. Y. C. H. R. R. Co. v. Beaham, 242 U.S. 148; A. T. & S. F. Ry. Co. v. Harold, 241 U.S. 371; Railway v. Rankin, 241 U.S. 319; Railway v. Blish Milling Co., 241 U.S. 190; Northern Pacific Ry. Co. v. Wall, 241 U.S. 87; Southern Ry. Co. v. Prescott, 240 U.S. 632; Adams Express Co. v. Croninger, 226 U.S. 491; United Metals Selling Co. v. Pryor, 243 F. 91; Donovan v. Wells Fargo & Co., 265 Mo. 291; Clemons Produce Co. v. D. & R. G., 203 Mo.App. 100, 219 S.W. 660; Joseph v. Chicago, B. & Q. R. R. Co., 175 Mo.App. 18; Bradford v. Hines, 206 Mo.App. 582. (b) Where a shipment moving in interstate commerce is damaged or destroyed by an act of God, but would not have been within the range of the destructive force except for the negligent delay of the carrier, it is the established rule accepted and enforced in the Federal courts, as well as many State courts, that the act of God and not the negligent delay is the proximate cause of the loss and that the negligent delay is too remote as a contributing cause to render the carrier liable. 10 Corpus Juris, page 126; Memphis & Charleston R. R. Co. v. Reeves, 10 Wall. (77 U.S.) 176; St. Louis etc. Ry. Co. v. Commercial Union Insurance Co., 139 U.S. 223; Scheffer v. Washington City Midland, etc., R. Co., 105 U.S. 249; Denny v. Railroad, 13 Gray 481; Empire State Cattle Co. v. A. T. & S. F. Ry. Co., 135 F. 135; Thomas v. Lancaster Mills, 71 F. 481; Chicago, etc., R. R. Co. v. Elliott, 55 F. 949; Scott v. Baltimore etc. Steam-Boat Co., 19 F. 56; Caldwell v. Southern Express Co., 4 Fed. Cas. No. 2303; Henry v. Railroad, 76 Mo. 288; Ballentine v. Railroad, 40 Mo. 491; Clark v. Railroad, 39 Mo. 184; Francis v. Transfer Co., 5 Mo.App. 7; Barnet v. N. Y. C. & H. R. R. Co., 118 N.W. 625; Michigan Central Ry. Co. v. Burrows, 33 Mich. 6; Lamar Manufacturing Co. v. St. Louis & San Francisco R. R. Co., 117 Mo.App. 453; Lightfoot & Sons v. St. Louis & San Francisco R. R. Co., 126 Mo.App. 532; American Brewing Assn. v. Talbot et al., 141 Mo. 674; Haley v. St. Louis Transit Co., 179 Mo. 30; Davis v. Ry. Co., 89 Mo. 340; Dolan Fruit Co. v. Davis, D. G., 196 N.W. 168; Northwestern Consol. Milling Co. v. Chicago, B. & Q. R. R. Co., 160 N.W. 1028 (c) Plaintiff's evidence clearly showed the cold and freezing weather with temperature far below the point necessary to damage shipment of perishable nursery stock in a box car occurred long before defendant Chicago, Burlington and Quincy Railroad Company could possibly have transported said shipment to destination after receiving it at Chicago, Illinois. (d) The burden was on plaintiff to prove actual negligence causing delay to its shipment and the mere proof of time loaded and time of arrival at destination with opinion as to usual and ordinary time for transportation of said shipment from origin to destination is not sufficient to permit recovery. Delay alone is not sufficient to establish liability. The delay must have been a negligent one. Southern Ry. Co. v. Prescott, 240 U.S. 632; Robb v. Wichita Falls Ry. Co., 213 S.W. 155; Harrison v. C. & A. Ry. Co., 239 S.W. 871; McMickle v. Wabash Ry. Co., 209 S.W. 611; Baker v. Schaff, 211 S.W. 103; Burgher v. Wabash Ry. Co., 217 S.W. 854; Baker v. Schaff, 221 S.W. 743; Moore v. C. B. & Q. R. Co., 223 S.W. 1079; Bland v. C. & A. Ry. Co., 232 S.W. 232. (e) Defendant's tariff published, posted and on file as required by law, provided alternative rates dependent upon the service to be rendered in respect to protection of perishable shipments from damage by frost and freezing of which plaintiff had actual knowledge through its shipping clerk and by electing to make its shipment in a box car under the "Shippers' Protective Service" provision of said tariff thereby assumed all risk of damage by freezing. The furnishing of service different from the provisions of said tariff would have been a discrimination. New York Central & H. R. R. Co. v. Beaham, 242 U.S. 148; Southern Ry. Co. v. Prescott, 240 U.S. 632; United Metals Selling Co. v. Pryor, 243 F. 91; Clemons Produce Co. v. D. & R. G., 203 Mo.App. 100, 219 S.W. 660; Fort v. D. & R. G. Ry. Co., 195 Pacific 109; Randall v. Detroit & M. Ry. Co., 180 N.W. 361; Erie Railroad v. Stone et al., 244 U.S. 332; Atchison, Topeka & Santa Fe Ry. Co. v. Robinson, 233 U.S. 173; Louisville & Nashville Ry. Co. v. Maxwell, 237 U.S. 94; Dayton Coal & Iron Co. v. C. N. O. & T. P. Ry. Co., 239 U.S. 446; P. C. C. & St. L. R. Co. v. Fink, 250 U.S. 577; New York Central Ry. Co. v. York, 256 U.S. 406. (2) The court erred in giving plaintiff's Instruction Number 1. Plaintiff's instruction No. 1 is erroneous for the reason it is broader than the pleadings and is not supported by the evidence. Strother v. A. T. & S. F. Ry., 212 S.W. 404; Baker v. Bush, 194 S.W. 1061, cases cited; Degonia v. Railroad, 224 Mo. 588; Small v. Ice & Fuel Co., 179 Mo.App. 456; Kirkpatrick v. Railway, Co., 211 Mo. 68; Kellogg v. City of Kirksville, 132 Mo.App. 519; Black v. Railway Co., 217 Mo. 685; State ex rel. v. Ellison, 270 Mo. 645; Muser v. Kansas City, 249 S.W. 681. (3) The court erred in giving plaintiff's instruction Number 2. Instruction No. 2 is not supported by the evidence and is erroneous in withdrawing from the consideration of the jury the defense as made by defendant's tariffs, thereby depriving defendant of its rights under the Federal laws. New York Central & H. R. R. Co. v. Beaham, 242 U.S. 148; Clemons Produce Co. v. D. & R. G. Railroad, 203 Mo.App. 100. The court erred in refusing to give defendant's instructions. Defendant's instructions Nos. 5 and 6 correctly stated the law applicable to the case and defendant was entitled to have its theory of the case submitted to the jury as stated in said instructions. Davis v. Springfield Hospital, 196 S.W. 104; Bailey v. Wabash, 207 S.W. 82; Sullivan v. Chauvenet, 186 S.W. 1090; Humbird v. Railway Co., 110 Mo. 76; Murray v. St. Louis Transit Co., 176 Mo. 191.

Glahn & Diemer for appellant, New York, Chicago & St. Louis Railroad Company.

(1) The instruction in the nature of a demurrer at the close of plaintiff's evidence should have been given as to the defendant New York, Chicago, and St. Louis Railroad Company there is no evidence of negligence, nor even of delay in the shipment. Winslow v. C. & A. R. R., 170 Mo.App. 617, 157 S.W. 96; Burgher v. Wabash R. R. Co., Mo.App. , 217 S.W. 854; Howell v. Davis, Mo.App. , 236 S.W. 889. (2) The instruction in the nature of a demurrer prayed by this defendant at the close of all the evidence should have been given. Same authorities as under point 1 above. (3) The court erred in giving plaintiff's instruction No. P-1. (a) Mere delay in the shipment, does not itself establish negligence. Robb v. Wichita Falls & N.W. R. R., Mo.App. , 213 S.W. 155; Bland v. C. & A. Ry., Mo.App. , 232 S.W. 232; Miller v. Q. O. & K. C. Ry., 205 Mo.App. 463, 255 S.W. 116; Moore v. C. B. & Q. Ry., Mo.App. , 223 S.W. 1079; Baker v. Schoff, Mo.App. , 221 S.W. 743; McMickle v. Wabash R. R. Co., Mo.App. , 209 S.W. 611; Winslow v. C. & A. R. R. Co., 170 Mo.App. 617, 157 S.W. 96; Burger v. Wabash Ry. Co., Mo.App. , 217 S.W. 854. (b) This instruction submits to the jury the question of whether the shipment was "negligently delayed" without informing the jury as to what constitutes "negligent delay." This was error. Howell v. Davis, Mo.App. , 236 S.W. 889. (4) Instruction No. P-2 for the plaintiff should not have been given. It also submits to the jury the question of "negligent delay" without defining these terms. Howell v. Davis, Mo.App. , 236 S.W. 889. (5) This being an interstate shipment it is governed by the Federal law; and the burden of proof to establish negligence is on the plaintiff. And the instruction offered by this defendant on this subject should have been given. Burgher v. Wabash Ry. Co., Mo.App. , 217 S.W. 854; Bland v. C. & A. R. R., Mo.App. , 232 S.W. 232; Southern Ry. Co. v. Prescott, 240 U.S. 632, 60 Law Ed. 836; New Orleans, etc., Ry. Co. v. Harris, 247 U.S. 367, 62 Law Ed. 1167; Memphis & Charleston R. R. v. Reeves, 77 U.S. 176, 19 Law Ed. 909. (6) The instruction asked by the defendant to the effect that plaintiff assumed the risk incident to making the shipment in the box car, should have been given. Especially in view of the fact that this was an interstate shipment, and the cold weather was the proximate cause of the injury, and any delay only the remote cause. Denny v. Railroad Co., 13 Gray 481; Morrison v. Davis, 20 Pa. St. 171; both the above cases are cited and approved in ...