Reading v. Chicago, Burlington and Quincy Railroad Company

• Decision Date: 02 April 1912
• Parties: JAMES LEE READING, Respondent, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

145 S.W. 1166

165 Mo.App. 123

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

Court of Appeals of Missouri, St. Louis

April 2, 1912

Appeal from Louisiana Court of Common Pleas.--Hon. D. H. Eby, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Palmer Trimble and John W. Matson for appellant.

(1) The trial court should have given appellant's instruction in the nature of a demurrer to the evidence at the conclusion of the respondent's case in chief and certainly should have given that instruction at the conclusion of all of the evidence in this cause. Fickland & Son v. Railroad, 115 Mo.App. 633; Otrich v. Railroad, 154 Mo.App 420; Meyers v. Railroad, 90 Mo. 98; Paddock v Railroad, 155 Mo. 524; Huston Bros. v Railroad, 63 Mo.App. 671; Milne v. Railroad, 155 Mo.App. 465; Warner v. Railroad, 137 S.W. 275; Cragin v. Railroad, 51 N.Y. 61; Insurance Co. v. Railroad, 144 N.Y. 200, 68 Hun 598; Blackstock v. Railroad, 20 N.Y. 48; Rixford v. Smith, 52 N.H. 55; Squire v. Railroad, 98 Mass. 239; Coupland v. Railroad, 61 Conn. 531; Railroad v. Van Dreser, 22 Wis. 511; Williams v. Railroad, 117 Ga. 830; C. R. Co. v. James, 117 Ga. 832; Railroad v. Word, 32 S.W. 14; Fordyce v. McFlynn, 19 S.W. 961; Railroad v. Riley, 1 S.W. 446; Frazer v. Railroad, 48 Ia. 571. (2) Respondent's petition is based upon special negligence therein alleged, and the instructions given on behalf of the respondent does not confine the negligence to the issues alleged in the petition. Miller v. United Railways, 155 Mo.App. 528; Smith v. Railroad, 126 Mo.App. 120; Monroe v. United Railways, 154 Mo.App. 39; Kohr v. Railroad, 117 Mo.App. 303; Politowitz v. Telephone Co., 115 Mo.App. 57; Lowenstein v. Railroad, 110 Mo.App. 686.

Pearson & Pearson for respondent.

(1) The law is well established in this State that it is the duty of a railroad company which holds 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. 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. Lackland v. Railroad supra; Prewitt v. Railroad, 62 Mo. 527. (3) The main question, that appellant seems to endeavor to press on this court, is a question of fact, that there was no delivery to or acceptance of these hogs by appellant. This too, was a question of fact to be submitted to the jury under proper instructions. Lackland v. Railroad, supra; Holland v. Railroad, 139 Mo.App. 70; Mason v. Railroad 25 Mo.App. 473; Prewitt v. Railroad, 62 Mo. 527.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of defendant's negligence in maintaining its stock pen. Plaintiff recovered and defendant prosecutes the appeal.

It appears defendant maintains a stock pen for the accommodation of shippers at a siding or station on its railroad at Reading, about seven miles from Louisiana, Missouri. Plaintiff is a farmer and ships cattle and hogs over defendant's railroad from Reading station several times each year. Defendant maintains no office and has no agent at Reading but all shipments of stock from that point are negotiated through its freight agent at Louisiana, seven miles distant.

On June 29, plaintiff telephoned defendant's agent at Louisiana that he desired to ship a carload of hogs from Reading on the evening of the following day, and requested a car for that purpose. Defendant's agent assured him that the car would be furnished in due time, and on the following morning plaintiff, together with others, drove the hogs about three miles from his home to Reading station. As the weather was warm, the hogs, eighty-two in number, were removed from plaintiff's farm to defendant's stock pen in the early part of the day. It appears that by 10:30 o'clock plaintiff had delivered all of the eighty-two hogs in good order and condition in defendant's stock pen at Reading to await the arrival of the car in which they were to be loaded in the cool of the evening for the freight due there about 9:00 p. m. After having placed the hogs in the stock pen, plaintiff returned to his home and telephoned defendant's freight agent at Louisiana, Missouri that the hogs were delivered in the pen and to bill them out. In response to this message, defendant's agent answered, "All right," and took a memorandum over the telephone of the number of the hogs, their character, the consignee and their destination at East St. Louis. About the middle of the afternoon, thirty-four of the hogs were found dead from overheat, and another died soon after.

The petition charges that defendant so carelessly and negligently maintained its stock pen at Reading as to prevent ventilation and the circulation of air therein and that it is because of this negligence the hogs came to their death. It is averred that defendant negligently piled railroad ties along and adjacent to one side of the stock pen and permitted tall weeds and grass to grow up and stand thick adjacent to all the remaining sides thereof so as to prevent the free circulation of air within the pen. The evidence tends to prove that plaintiff drove his hogs carefully from home in the early part of the day and permitted them to cool off thoroughly before placing them in the pen about ten o'clock in the forenoon. If the evidence is to be accepted as true, as it was by the jury, the hogs were certainly sound and in good order when plaintiff delivered them to defendant in the pen. The evidence tends to prove, too, that a condition of excessive heat prevailed in the stock pen because the circulation of air was largely impeded therein as a result of the thick growth of weeds and the pile of ties complained of in the petition. There is evidence, too, that these weeds and ties were negligently permitted to grow and stand around and adjacent to the stock pen.

It is argued the judgment should be reversed because it is said the delivery of the hogs to defendant was not complete at the time they died. Touching this argument, it may be said that defendant should be required to respond for the consequences of its negligence in the circumstances of the case at any event; for, though the hogs were not delivered to defendant in the sense that it had acknowledged receipt therefor by issuing a bill of lading or had undertaken the task of loading them on the car, which more properly rested with plaintiff, the evidence is conclusive to the effect that its agent in charge invited plaintiff to place the hogs in the pen to await the arrival of the car which had been ordered the day before. No one can doubt that it is the duty of defendant, common carrier of live stock, to maintain yards or stock pens for the accommodation of those desiring to ship animals over its road. The duty to maintain such stock pens includes, too, an obligation which the law annexes that they shall be maintained reasonably safe for the purpose intended. Therefore, if a shipper is invited by defendant to corral his hogs or cattle in such pen to await the arrival of a car, as a corollary of such invitation, the law casts the obligation on it to respond for such damages as may result to the shipper through negligence in the construction or maintenance of the stock pen. [See Lackland v. C. & A. R. Co., 101 Mo.App. 420, 74 S.W. 505; Cooks v. K. C. & Ft. S. R. Co., 57 Mo.App. 471; Kincaid v. K. C., etc. R. Co., 62 Mo.App. 365.]

But aside from all of this, there is an abundance in the testimony of both plaintiff and defendant's agent to constitute substantial evidence to the effect that the shipment of hogs had been actually received by defendant about 11:15...