Read v. St. Louis, Kansas City & Northern R.R. Co

• Decision Date: 31 May 1875
• Citation: 60 Mo. 199
• Parties: AQUILLA D. READ, Respondent, v. THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

60 Mo. 199

AQUILLA D. READ, Respondent,

v.THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

W. H. Sherman, for appellant.

I. Where it is shown that a loss by a common carrier was occasioned by a cause from which he is by law or special contract exempted from liability, the burden is cast upon the shipper to establish the negligence of the carrier. In other words, the shipper then holds the affirmative in establishing the liability of the carrier for negligence. (N. J. St. Nav. Co. vs. Merchants' Bk., 6 How., 382; Railroad Co. vs. Reeves, 10 Wall., 176; Clark vs. Barnwell, 12 How., 280; Muddle vs. Stride, 9 Carr. & P., 385; Western Tr. Co. vs. Downer, 11 Wall., 129, S. C. 10 Am., L. Reg. (n. s.) 360; Western Tr. Co. vs. Newhall, 24 Ill., 469; Farnham vs. C. & A. R. R. Co., 55 Pa. St., 58; Colton vs. C. & P. R. R. Co., 67 Pa. St., 213.)

II. What is reasonable time, and what is delay, must always be determined by the circumstances under which the carrier acts. (Parsons vs. Hardy, 14 Wend., 217; Harmony vs. Bingham, 12 N. Y., 99; Wibert vs. N. Y. & E. R. R., 19 Barb., 36; S. C., 12 N. Y., 245; Conger vs. H. R. R. Co., 6 Duer, 375; Swetland vs. B. & A. R. R. Co., 102 Mass., 276.)

Defendant is not liable for delay caused by the acts of third parties who prevent the operation of its railroad, notwithstanding the exercise of reasonable care and prudence to avoid delay. (Conger vs. H. R. R. Co., 6 Duer., 375; see also, Blackstock vs. N. Y. & Erie R. R. Co., 1 Bosw., N. Y., 78; S. C., 20 N. Y., 48.)

In the above cases the decisions hold the carrier responsible for injuries resulting from a strike of engineers; but they were based upon the fact that it was the sudden and faulty refusal of the large body of defendant's engineers, then their servants, to do their duty that caused the delay in question.

But in this case, as shown by the evidence, the rebellious engineers left the defendant's service when the strike began, and defendant made every effort in its power to suppress their riotous demonstrations and to employ other servants.

To render defendant liable for damages by the freezing, its negligence must have been an active and co-operative cause. If the delay was excusable, as shown to be by the facts, and if the cars were suitable, defendant did its duty as a common carrier. (Levering vs. Un. Tel. & Ins. Co., 42 Mo., 95.)

III. The freezing in this case was not a natural result of the delay. It was the remote and not the immediate consequence. And hence defendant cannot be held liable. (See Denny vs. N. Y. Cent. R. R. Co., 13 Gray, 481; Hazard vs. N. E. Mar. Ins. Co., 1 Sumn., 229; Delano v. Bedf. Ins. Co., 10 Mass., 354; Morrison vs. Davis, 20 Penn. St., 171; Hoadley vs. N. Trans. Co., 115 Mass., 304; Ballentine vs. N. Mo. R. R. Co., 40 Mo., 505; Clark vs. Pac. R. R., 39 Mo., 190.)

Doniphan & Reed for, respondent.

The delay was caused by the fact that defendant's employees suddenly and wrongfully refused to work, and defendant cannot avail itself of this fact, even though it used effort and diligence to obtain other employees. (1 Bosw., 77; 20 N. Y., 48.)

II. The freezing is claimed by appellant to be an act of God; but the law is, that even in that case, if the negligence of the carrier mingles with it as an active and co-operative cause, he is still responsible.

In the case at bar, the loss was owing not merely to the act of God, but to the strike which caused the delay; and the neglect and inattention of the servants to duty were those of the master, and so the negligence of the company contributed to produce the loss.

III. Whatever stipulations may be contained in a bill of lading, the carrier cannot by contract exonerate himself from the consequences of his own negligence.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff alleged in his petition that on the 22d day of March, 1873, he delivered to defendant at St. Joseph, Mo., one thousand bushels of potatoes, to be conveyed to his consignees at St. Louis, with reasonable speed and dispatch; that defendant, for a compensation paid by plaintiff, undertook to deliver the same on the next day in good condition. There was an averment that, disregarding its duty and agreement, defendant negligently failed to carry, and deliver the potatoes at St. Louis, with speed and diligence, but negligently stopped and delayed the potatoes by the way for a period of ten days, so that they were frozen, rotted, and rendered wholly worthless; and that the damage to the potatoes was entirely in consequence of defendants' negligently failing to deliver them.

The answer denied these allegations, and for a further defense it was stated that when the potatoes were delivered to defendant, there was a stipulation entered into between the parties by which it was agreed that the potatoes were to be carried at the owners' risk of freezing. It is further alleged that the potatoes shipped on the 22d of March arrived at their destination on the 31st day of the same month, and that from the time they were shipped, and continuously thereafter, until about the first day of April, the defendant was prevented from running or carrying freight or freight cars over the line of its railroad by unavoidable and unforseen misfortune; that defendant endeavored by diligence and care to deliver the freight at its destination, but that during the time mentioned several persons and lawless bands of men assaulted defendants' employees, and that by such assaults and threats of personal violence, drove the employees away, so that defendant could not run or operate its road, and that lawless bands of men tore up the track and burned bridges, rendering it impossible to transport freight on the cars without many delays.

A replication was filed to this answer which alleged among other things, that the lawless persons and bands of men were dissatisfied and disaffected employees of defendant engaged in a “strike,” and that all difficulties arising from this cause were over before the potatoes were shipped.

The trial was before the court with a jury, and there was a verdict and judgment for the plaintiff.

The evidence shows that at the time the potatoes were delivered to the defendant, it gave a receipt for them in the nature of a bill of lading, which had written upon its face the words “owner's risk, freezing.” The evidence further showed that the difficulty in running the trains was occasioned by what was called a “strike” among the defendant's engineers, originating in consequence of the employment of an engineer that did not belong to their brotherhood, and that their places were supplied as rapidly as defendant could get others to take them.

For the plaintiff, the court instructed the jury:

1. That if they believed from the evidence that the potatoes were shipped to be delivered in St. Louis, within a reasonable time, and that they were damaged by reason of the carelessness, delay and negligence of the defendant in delivering them to the consignees, then the jury should find for the plaintiff.

2. That if the agent at St. Joseph induced the plaintiff to ship the potatoes by representing that the road was clear, and that they would be delivered in St. Louis within twenty-four hours, or thereabouts, and relying upon such representations, plaintiff paid the freight, and a failure to deliver within a reasonable time, resulted in a loss to plaintiff by freezing, then he was entitled to recover for such loss; and

3. That it devolved on the defendant to show, notwithstanding the exception exempting it from loss by freezing, that the loss did not occur through any fault, want of care, or negligence on its part, or the part of its agents or employees.

The defendant asked the court to give ten instructions. The court gave the third, eighth, and tenth, and the first and fourth in a modified form, and refused the others.

The first instruction declared, that it was admitted that on or about the 22d of March, 1873, the plaintiff shipped a quantity of potatoes to be carried by defendant to St. Louis, at the owner's risk of freezing; and if the jury believed from the evidence that defendant's freight trains and cars in which the potatoes were shipped were delayed on the railroad by obstructions thereon placed by persons other than servants or employees of the defendant, or by other riotous conduct of such persons along the line of the railway, and that defendant, with great care and diligence and regard for the property of plaintiff and others, strove to carry (among others) the cars containing plaintiff's potatoes, to St. Louis, and to avoid delay; and that notwithstanding defendant's care and diligence, plaintiff's potatoes were delayed by such obstructions and riotous conduct, and that during such delay they were injured by freezing, then plaintiff cannot recover for such injury.

The third instruction states the proposition that it is admitted in the case, that when the plaintiff's potatoes were shipped by defendant for St. Louis, plaintiff assumed all risk of loss in consequence of freezing; and if the jury believe from the evidence that the potatoes were frozen while being carried by defendant to St. Louis, and that the damage to them by freezing was not produced or aided directly by the negligence or want of reasonable care on the part of defendant's servants or agents, then they will find for defendant.

The fourth instruction told the jury that under the contract read in evidence defendant was only obliged to transport the potatoes with reasonable speed and dispatch; and if they believed that, while the potatoes were being carried to St. Louis by the defendant with such reasonable speed and dispatch, they were injured by freezing, then plaintiff could...