Reading v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 02 February 1915
• Parties: JAMES LEE READING, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

173 S.W. 451

188 Mo.App. 41

JAMES LEE READING, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 2, 1915

January 7, 1915, Argued and Submitted

Appeal from Louisiana Court of Common Pleas.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED (conditionally).

O. M Spencer, J. W. Matson, Palmer Trimble and M. G. Roberts for appellant.

(1) The instruction in the nature of a demurrer to the evidence should have been given for the following reasons: (a) At all "flag" stations or "wayside deposits" made for the purpose of saving the trouble of hauling to a regular depot the live stock are held at the risk of the owner until they are placed upon the cars. This is for the reason that the shipper knows that there are no agents or servants of the defendant company there to water or feed the cattle or otherwise care for them, and hence the law places the duty upon the plaintiff. 1 Hutchison on Carriers (3 Ed.) sec. 122, p. 120; also Vol. 2, sec. 929, p. 1046; Anderson v. Railroad, 38 So. 661; Tate v. Railroad, 29 So. 393; Wilson v. Railroad, 9 S. E. (Ga.) 1076; Wells v. Wilmington, 51 N. C., 72 Am. Dec. 556; Railroad v. Lilly, 8 So. 644. (b) Because it appears from plaintiff's testimony that the hogs were still, at the time they were injured, under his dominion and in his possession and that they had not been delivered to and accepted by the defendant. The obligation of the common carrier does not commence until delivery, and this delivery must be complete so as to put upon him the exclusive duty of looking after the cattle. The law will not divide the duty and it must rest entirely upon one or the other. The mere placing of the cattle in the yards at a "blind" station is not delivery. 1 Hutchison on Carriers (3 Ed.), sec. 105, p. 102; 4 Elliott on Railroads (2 Ed.), sec. 1404, p. 23; Authorities under (a). (c) Because the condition of the stock pen was fully known by the plaintiff and he knew that the same condition had existed for five years. Those conditions were open and obvious. The same rule in determining negligence applies to the plaintiff as well as to the defendant. The plaintiff admits that he is an expert hog man. There can be no different standards in determining negligence, and since the condition of the stock pens were as fully known to the plaintiff as they were to the defendant, he was guilty of contributory negligence in placing his hogs there, as a matter of law. 5 Thompson on Negligence, sec. 6586, p. 991; Zachrzewski v. Railroad, 145 N.W. 801, 802. (2) This is an action ex delicto for simple negligence, and the court erred in instructing the jury to award interest on the amount claimed from date of demand and erred in refusing to grant a new trial for the same reason. In this kind of a case interest is not permitted. Eagan v. Railroad, 6 Mo.App. 594; Brink v. Railroad, 17 Mo.App. 177; DeSteiger v. Railroad, 73 Mo. 33; Meyer v. Railroad, 64 Mo. 542; State ex rel. Planet P. & F. Co. v. Harrington, 44 Mo.App. 301; Gerst v. St. Louis, 185 Mo. 211. (a) Even if interest was allowable, the verdict is so indefinite and vague that it does not measure up to the standard required by law in that the jury did not assess the damages and interest separably so that the court could determine whether a proper amount was allowed. (b) In cases where interest has been improperly allowed the courts have permitted respondent to enter a remittitur upon paying the costs of the appeal when it can be determined from the verdict how much interest the jury allowed. But in this case a reversal should be made for the reason that it cannot be determined from the record how much the jury allowed as interest. State ex rel. v. Hope, 121 Mo. 34; Hawkins v. Press Brick Co., 63 Mo.App. 68; Kimes v. Railroad, 85 Mo. 614. (3) The court erred in excluding the tariffs and classifications of the defendant governing this shipment on file with the Interstate Commerce Commission for the reason that the plaintiff predicates a recovery on damage to these hogs after delivery, and, since this is an interstate shipment, these tariffs, which are binding both upon the plaintiff and defendant and cannot be deviated from, show that the liability of the defendant is limited to ten dollars for each hog. Boston & Maine Railroad, 233 U.S. 110; Adams Express Co. v. Croninger, 226 U.S. 491, 44 L.R.A. (N. S.) 257; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U.S. 469; Railroad v. Carl, 227 U.S. 639; Railroad v. Harriman, 227 U.S. 657; Railroad v. O'Connor, 232 U.S. 508; Railroad v. Spring River Stone Co., 169 Mo.App. 109; Myers v. Railroad, 134 Mo.App. 379.

Pearson & Pearson, for respondent.

(1) The law is well established in this State, that it is the duty of the railroad company holding itself out as a common carrier of live stock, and has invited and obtained a shipper's business, to establish and maintain a safe receptacle for the receipt and preservation of live stock awaiting shipment over its road; and this duty cannot be efficiently discharged without the aid of pens or yards in which the stock, offered for shipment, can be received and handled with safety awaiting shipment. Reading v. Railroad, 165 Mo.App. 123; Lackland v. Railroad, 101 Mo.App. 420; Mason v. Railroad, 25 Mo.App. 473. (2) As to whether or not the pen in the case at bar, was a reasonably safe receptacle for the receipt and preservation of hogs awaiting shipment on appellant's railroad, was a question for the jury to determine under proper instructions. Reading v. Railroad, supra; Lackland v. Railroad, supra; Prewitt v. Railroad, 62 Mo. 527, 543. (3) The main question that appellant endeavors to press on this court is a question of fact, that there was no delivery to or acceptance of, these hogs by appellant. This was a question of fact to be submitted to the jury under proper instructions. Reading v. Railroad, supra; Lackland v. Railroad, supra, 428; Holland v. Railroad, 139 Mo.App. 70; Mason v. Railroad, 25 Mo.App. 473; Prewitt v. Railroad, 62 Mo. 527.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--This is the second appeal in this case, the judgment formerly rendered having been set aside and the cause remanded by our court for error in an instruction. [See Reading v Chicago, Burlington & Quincy Railroad Co., 165 Mo.App. 123, 145 S.W. 1166.] On the case reaching the circuit court after our judgment of reversal, the petition being unchanged, defendant filed an amended answer which averred that the hogs complained of by plaintiff were not delivered to defendant and never had been in its possession until loaded upon defendant's cars; that if any damage occurred to the hogs prior to that time it so occurred while they were in the possession and under the control and care of plaintiff. It is further averred that if plaintiff placed his hogs in the stock yards at Reading siding, he was using defendant's pens solely for his own convenience in lieu of retaining his hogs on his own premises until the evening of the day they were loaded on the cars, and that in so using defendant's stock pens plaintiff assumed the risk of putting and holding his hogs in the pen during all that part of the day prior to the loading of the hogs, and that defendant is in nowise liable for any damage or injury to plaintiff's hogs during the time that he so kept them in defendant's pens prior to the loading of the hogs by plaintiff into defendant's cars. Finally, it is set up as a defense that any injury or damage to plaintiff's hogs prior to the time they were loaded by him upon defendant's car, resulted wholly and solely from the negligence of plaintiff and his agents and employees in driving the hogs a long distance during the heat of the day and putting them in uncovered pens, the condition of which was well known to plaintiff, and in so leaving them there without any proper care or attention, and in failing to haul the hogs to the railroad pens as any ordinarily prudent shipper would have done under similar circumstances, hence defendant says it is in...