Schade v. The Missouri Pacific Railway Company
| Decision Date | 06 April 1920 |
| Citation | 221 S.W. 146,204 Mo.App. 88 |
| Parties | W. F. SCHADE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted February 4, 1920.
Appeal from the Circuit Court of Cape Girardeau County--Hon. Frank Kelly, Judge.
AFFIRMED.
Judgment affirmed.
James F. Green and W. C. Russell for appellant; E. J. White of counsel.
(1) There is no positive proof of negligence, nor is there any proof from which the jury could infer negligence on the part of the carrier. Therefore, the demurrer should have been sustained. Hance v. Express Co., 48 Mo.App. 179; Cash v. Railroad Co., 81 Mo.App. 109; Cunningham v. Railroad Co., 167 Mo.App. 273; Smith v. Railway Co., 183 S.W. 701; Libby v. Railway Co., 137 Mo.App. 276. (2) Plaintiff's instructions Nos. 1 and 2 should have been refused because there was no testimony on which to base them. Authorities, supra. (3) Plaintiff's instructions No. 3, in effect, told the jury that if the jack was in good condition when delivered to the company, and injured when he arrived at Jackson, they should find for plaintiff. It singled out the only fact proven and emphasized it to the jury. This was error. (4) The recital in the contract that the rate was a reduced one was prima-facie evidence of the fact. In the absence of proof to the contrary, defendant's instruction No. 7 should have been given. McFadden v. Railway Co., 92 Mo. 343; Kellerman v. Railway Co., 136 Mo. 177; Harvey v Railway Co., 74 Mo. 538; Bowring v. Railway Co., 77 Mo.App. 251; Shelton v. Railway Co., 111 S.W. 627; Besheer v. Railway Co., 151 Mo.App 80. Under the contract of shipment, the agent at Jackson had no authority to "waive, modify or amend" and of its provisions. The fifth clause of the contract required written notice of any damages for any loss or injury to the jack to be served on the agent at destination within one day after the delivery at destination. This was not given, and therefore plaintiff cannot recover. George v. Railway Company, 214 Mo. 551.
A. M Spradling for respondent.
(1) The demurrer was properly overruled. While, in order to establish liability against a carrier for injury to a shipment of life stock, it is not necessary to prove negligence on the part of the carrier by direct evidence, it is essential to show a state of facts or circumstances from which negligent conduct on its part may be inferred. Botts v. Railroad, 191 Mo.App. 676, 681; Foust v. Lee, 138 Mo.App. 722, 729; Libby v. Railroad, 137 Mo.App. 276, 282; Cash v. Railroad, 81 Mo.App. 109, 114; Hance v. Railroad, 48 Mo.App. 179, 183. (2) Plaintiff's instructions properly declared the law and are the same instructions that were given in the following case. Pacific Express Co. v. Emerson, 101 Mo.App. 62, 72. (3) If it appears that the stock were in good condition when delivered to the carrier for transportation, and were wounded upon reaching their destination, the jury may infer from such facts that the transporation was not attended with due care. Cunningham v. Railroad, 167 Mo.App. 273, 28; Foust v. Lee, 138 Mo.App. 722, 729; Libby v. Railroad, 137 Mo.App. 276, 282. (4) The shipment in this case was an intrastate shipment, and not governed by the law of interstate shipments. A stipulation in the bill of lading requiring the shipper to give the carrier notice of loss or injury is not a reasonable regulation which the carrier may insert in the contract, but it is, in fact, a limitation upon the common-law liability of the carrier. Botts v. Railroad, 191 Mo.App. 676, 682; Grain Co. v. Railroad, 177 Mo.App. 194, 197; Burgher v. Railroad, 139 Mo.App. 62, 70; Libby v. Railroad, 137 Mo.App. 276, 287; George v. Railroad, 214 Mo. 551. (5) Since the contract in this case is void, it is not material whether a stipulation requiring notice may be waived, but the following cases hold that a stipulation requiring notice may be waived. Summers v. Railroad, 114 Mo.App. 450, 458; Ingwerson v. Railroad, 116 Mo.App. 139, 150; McFall v. Railroad, 117 Mo.App. 477, 484; Jones Bros. v. Railroad, 117 Mo.App. 523, 526; Bushnell v. Railroad, 118 Mo.App. 618, 627; Simms v. Railroad, 177 Mo.App. 18, 27.
Action to recover the value of a registered jack called "John Elmer." On a trial in the circuit court plaintiff recovered the sum of $ 850, and after an unsuccessful motion for a new trial defendant duly perfected an appeal to this court. The action was originally against the Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company. Verdict and judgment went against the former alone, plaintiff dismissing as to the latter. The petition avers that in April, 1914, plaintiff purchased a registered jack from L. M. Monsees & Sons, farmers and stock raisers of Pettis County, in this State; that on April 17, 1914, Monsees & Sons delivered to defendant, the Missouri Pacific Railway Company, the jack in good condition; that the Railroad Company received it and agreed, in consideration of certain freight charges, to carry it safely from Smithton in Pettis County, to St. Louis, and at the latter place deliver it to the St. Louis, Iron Mountain & Southern Railway Company in as good condition as when received by it; that the Missouri Pacific Railway Company delivered the jack to the St. Louis, Iron Mountain & Southern Railway Company, at St. Louis, which latter railroad received it and agreed, for and in consideration of freight charges, to carry it from St. Louis to Jackson, in this State, and at the latter place to deliver it to plaintiff in as good condition as when received by it. The petition then avers "that the defendants, in violation of their said agreements, and in total disregard of their duties as common carriers aforesaid, so carelessly and negligently conducted themselves in the premises that said jack was greatly injured and was delivered to plaintiff in a damaged condition and subsequently died from the effect of said injuries."
The answer of the defendants sets out that before shipping the jack to plaintiff, Monsees & Sons, as consignors and agents of plaintiff, entered into a contract of shipment with the Missouri Pacific Railroad Company, then in control and operating a railroad owned by the St Louis, Iron Mountain & Southern Railway Company, by the terms of which contract the defendants undertook to carry the jack, together with one other, from Smithton to Jackson, at the rate of $ 49.22, that rate less than the rate charged for shipments transported at carrier's risk, and that in consideration of the reduced rate and other considerations, it was agreed in the contract among other things, as follows: First that plaintiff should assume all risk and expense of feeding, watering, bedding and otherwise caring for the live stock covered by the contract while in the cars, yards, pens or elsewhere, loading and unloading the same at his own expense and risk; that the plaintiff and his agents failed and neglected to place some person in charge of the stock while it was being transported to care for and look after it while in the cars, and that if any injury was suffered or sustained by the jack known as John Elmer, it is due to the failure of plaintiff and his agents to place some person in charge of the jacks to look after them and care for them while being transported from Smithton to Jackson. Second, that as a condition precedent to the recovery of any damages for any loss or injury to the jacks covered by the contract for any cause, including delays, it was agreed that plaintiff and his agents would give notice in writing of the claim thereof to some general officer of the defendants, or to their nearest agent, or to the agent at the destination, or to some general officer of the delivering line before the jacks were removed from the point of shipment and place of destination, such written notification to be served within one day after the delivery of the jacks at destination, to the end that such claim might be fully and fairly investigated, and that a failure to fully comply with the provisions of this clause should be a bar to the recovery of any and all claims, and to any and all suits or actions brought thereon; and it is averred that plaintiff and his agents failed to give written notice of any claim or injury to either of the jacks to some general officer of the defendants or to their nearest station agent or to their agent at Jackson, Missouri, before the jacks were removed from the station at Jackson, and before the stock was mingled with other stock, and failed to serve such written notification upon some of the persons above named within one day after the delivery of the jacks at said station of Jackson, that being the place of destination; that they failed to give any written notice to any of the above officers or agents of defendants until the first day of September, 1914, nearly five months after the jacks were delivered by defendants to plaintiff at their station at Jackson, and this failure is pleaded in bar of the action. Third, the further provision in the contract pleaded is that the limitation of loss was $ 100 for each jack, when shipped under a like contract. . . . Fifth, that by the express provisions of the contract the shipper and agent of plaintiff acknowledged that they had the option of making the contract of shipment under the tariff rates either at carrier's risk or "upon a limited liability, and that they had selected the rate and liability named therein, to-wit, a limited liability based on a reduced rate and expressly accepted and agreed to all the stipulations and agreements and conditions contained in said contract of shipment." Finally, that it was expressly agreed in...
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