Pinkerton v. Missouri Pac. Ry. Co.

• Decision Date: 05 February 1906
• Citation: 117 Mo. App. 288,93 S.W. 849
• Parties: PINKERTON v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

93 S.W. 849

117 Mo. App. 288

PINKERTON v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. CARRIERS—LIABILITY FOR LOSS OF FREIGHT —FLOODS.

A carrier is liable for loss of freight from a flood, if it was aware of its approach in time to remove the goods to a place of safety by the exercise of ordinary care and diligence.

2. SAME—NEGLIGENCE—EVIDENCE.

Evidence in an action against a carrier for loss of freight from a flood held sufficient to go to the jury on the question of defendant's negligence in not getting the goods to a place of safety, after it knew of the approach of the flood.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by J. W. Pinkerton against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

R. T. Railey, for appellant. Cole, Burnett & Moore, for respondent.

ELLISON, J.

The plaintiff shipped a lot of household goods over the defendant's road from Hannon, Mo., a point south of Kansas City, destined for Polo in the same state. He charges that they were damaged and lost by defendant in negligently delaying them and carelessly and negligently handling them. Defendant sought to excuse itself by showing that the property was lost in an extraordinary and unprecedented flood. The judgment in the trial court was for plaintiff.

The property was partly lost and the remainder damaged at Kansas City, Mo., in the great flood at that point in the latter part of May and first of June, 1903. In the case of Moffatt Com. Co. v. Railway Co., 113 Mo. App. 544, 88 S. W. 117, we considered a question of the liability of a freight carrier for the loss of freight in that flood. We there held that, though the flood was an act of God, that to excuse the carrier "the act of God must be the sole cause of the loss or injury, and whenever the negligence of the carrier mingles with the act of God, as a co-operative cause, he is liable, provided the resulting loss is within the probable consequences of the negligent act; otherwise, it will be too remote and disconnected to be considered the proximate cause." We see no reason for departing from that case. It was but the application of a well-recognized rule of law, which has been stated by our Supreme Court. Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538; Holwerson v. Ry., 157 Mo. 216, 231, 57 S. W. 770, 50 L. R. A. 850; Warner v. Railway Co., 178 Mo. 125, 134, 77 S. W. 67. The case of Haley v. Transit Co., 179 Mo. 30, 77 S. W. 731, 64 L. R. A. 295, is directly in point as to what should be considered to be caused by the negligent conduct. In that case, the servants of a street railway negligently carried the plaintiff a block beyond the point where she wished to leave the car, for stopping at which she had signaled. It was after dark and ice was upon the sidewalks. In walking back the distance of the block, she slipped and fell, receiving severe and lasting injury. The defendant was held not liable notwithstanding its negligence in carrying the plaintiff by: it being held that such negligence was not the proximate cause of the injury; that the injury was not the natural and probable consequence of the defendant's negligence or wrongful act, and was not such a result as ought to have been foreseen. But in the Moffatt Case, we recognized that, if injury from the act of God might have been avoided by reasonable foresight and care, liability would follow. And so the learned trial judge instructed the jury in this case that if "the defendant became aware of the impending and approaching flood in time to have removed the goods to a place of safety by the exercise of ordinary care and diligence," it was liable for the loss. Davis v. Ry., 89 Mo. 347, 1 S. W. 327. So, therefore, the question is; was there evidence adduced which had a tendency to support the hypothesis thus submitted to the jury? An examination of the record satisfies us that there was.

Polo, the destination of the goods, was not on defendant's line of road, and it transferred them to a car of another line, which reached that place. Kansas City, where they were lost, was the transfer point. They left the point of shipment about 150 miles from Kansas City on the afternoon of Wednesday, the 27th of May. It does not appear clearly in evidence just when they arrived in Kansas City, but defendant alleges in its answer that it was on the night of Friday, the 29th. At any rate, defendant was handling the car, in which they were, on Saturday forenoon, and in the...