Rhodes v. Missouri Pac. R. Co.

• Decision Date: 08 November 1921
• Docket Number: No. 16692.,16692.
• Parties: RHODES v. MISSOURI PAC. R. CO. et al.
• Court: Missouri Court of Appeals

234 S.W. 1026

RHODES v. MISSOURI PAC. R. CO. et al.

No. 16692.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Rehearing Denied December 5, 1921.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by A. J. Rhodes against the Missouri Pacific Railroad Company and Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendants appeal. Reversed as to Railroad Company, and affirmed as to Director General.

James F. Green, of St. Louis, W. C. Russell, of Charleston, and Edward White and C. P. Williams, both of St. Louis, for appellants.

R. C. Tucker, of Farmington, for respondent

BECKER, J.

This is an action instituted by the plaintiff against the Missouri Pacific Railroad Company and the Director General of Railroads jointly, to recover damages for the value of six hogs which died while in transit over the Missouri Pacific Railroad from De Lassus, in St. Francois county, Mo., to National Stockyards at East St. Louis, Ill. Plaintiff recovered judgment against both defendants, and the defendants bring this appeal.

Plaintiff alleges in his petition that it was the duty of the defendants to furnish plaintiff a car which had been thoroughly cleaned, and in a good sanitary condition (see sections 10004 and 10005, R. S. Mo. 1919) in which to transport his hogs, and that defendants, totally disregarding their duty in this respect did carelessly and negligently furnish a car that had not been cleaned, and that was not in good condition, and that the floor in said car was filthy, dirty, and dusty, and in a very unsanitary condition; that the defendants, totally disregarding their duty; did cause the plaintiff's hogs aforesaid to be loaded in said filthy, dusty, and dirty car so furnished as aforesaid, and that by reason thereof the plaintiff's hogs became suffocated with the dust and filth and dirt so carelessly and negligently left in said car that six of plaintiff's hogs died, to the damage of plaintiff in the sum of $277.05.

The defendants, Missouri Pacific Railroad Company and Walker D. Hines, Director General, answered separately. The answer of the railroad company was a plea to the jurisdiction of the court. The answer of Walker D. Hines, Director General at that time, was a specific denial that the Missouri Pacific Railroad Company was operating a road, a general denial, and plea in contributory negligence.

The plaintiff at the time of shipment lived in Farmington, which is about 2½ or 3 miles from De Lassus, where the hogs were loaded. On the day of shipment plaintiff drove the hogs from Farmington to De Lassus, leaving Farmington about 7 o'clock in the morning. Before he reached De Lassus one of the hogs died from overheat. It was a reasonably warm day, and it took plaintiff from 7 o'clock in the morning until 1 o'clock in the afternoon to go a distance of 2½ or 3 miles. The weather was so warm that he could only drive from one water hole to another before resting. When he arrived at the stock pens at De Lassus there was no car in which to load them, but plaintiff put them in the stock pens and hauled water during the afternoon in order to keep them cool, until a local train arrived about 6 p. m., bringing a double-deck stock car into which the hogs were loaded.

It was already dark when the train arrived, but plaintiff, when he started to load his hogs into the car, found that there were P, inches to 2 inches of dust and dirt upon the floor of the car, which, according to plaintiff's testimony, looked like "a carload of chickens had been shipped in it, and you know the kind of manure a bunch of chickens would make in a car." Plaintiff thereupon told the agent of the railroad company who was helping him load the car that—

"It was a mighty unsanitary car to ship in, but if you will wire ahead and have them watered at Bismarck, and other water stations, I will load them in, and he said he would."

Plaintiff thereupon loaded 96 head of hogs into the car, including 1 dead hog, which had suffocated from the heat while being driven from Farmington to De Lassus.

It appears that the plaintiff at first loaded all of his hogs onto the main floor of the car, which crowded the hogs too much, and some 5 or 6 were taken out of the car and reloaded into the upper deck thereof. On the following morning at about 11 o'clock the car arrived at its destination in East St. Louis, and 6 of the hogs in the car were found to be dead.

Appellants earnestly argue that the trial court erred in overruling the demurrer offered at the close of plaintiff's case and again at the close of the entire case, in that, though plaintiff proved that the car in which the hogs were shipped was dirty, and had not been cleaned, he had offered no substantial testimony that the dust and dirt in the car had caused the death of the hogs.

Appellants' argument on this question is that, though it is the duty of the carrier to furnish sound and suitable cars for the transportation of live stock and other property, the shipper, however, bears the burden not alone of proving the negligence of the carrier in this respect, but also that the alleged injury or damage was the result of such negligence, and that, though it be conceded that defendants furnished a filthy car for the shipment therein of plaintiff's hogs, yet plaintiff failed to carry the burden of proving that the death of the hogs was the result of such admitted negligence.

We readily concede the rule to be that, where the petition is based upon a specific act of negligence, and not on the common-law liability of the carrier as an insurer, the plaintiff takes the burden, and must carry it to the end of proving that his damage resulted from the alleged cause, and from no other. Witting v. Railway Co., 101 Mo. 631, 14 S. W. 743, 10 L. R. A. 602, 20 Am. St. Rep. 636; Smith & Son v. Railway Co., 177 Mo. App. 269, 164 S. W. 132; Bockserman v. Railway Co., 169 Mo. App. 168, 152 S. W. 389. Applying the rule to the case at bar, plaintiff had the burden of proving that the negligence of defendants caused the damage complained of, or was an active co-operating cause in producing the damage.

The question is thus presented: Absent any direct proof in this record, are the facts and circumstances sufficient from which the jury might reasonably infer that the death of the hogs was the result of the admitted negligence of the defendant? According to the record there is no controversy but that the hogs were in good condition at the time they were loaded into the car at 6:30 in the evening, and that when they were unloaded at their destination some 16 hours later 6 of the hogs were dead. Though the shipment was made on the 5th day of March, 1918, which, according to the record, was a reasonably warm day, yet the greater portion of the trip was made during the night, the hogs being unloaded at their destination before 11 o'clock the next morning.

According to plaintiff's own testimony, there were 1½ inches to 2 inches of dust and chicken manure in the car, and he notified defendant's agent that "it was a mighty unsanitary car to ship in." Plaintiff further testified that, on their arrival at destination, "the hogs were In a suffocating condition when I went to the car and looked at them."

John Mackley, a witness for plaintiff, testified that he helped plaintiff load the hogs into the car; that the hogs at that time were in good condition; that he examined the car,...