St. Louis & S. F. Ry. Co. v. Dreyfus

• Citation: 141 P. 773,42 Okla. 401
• Decision Date: 23 June 1914
• Docket Number: 3280.
• Parties: ST. LOUIS & S. F. RY. CO. v. DREYFUS ET AL.
• Court: Supreme Court of Oklahoma

141 P. 773

42 Okla. 401

ST. LOUIS & S. F. RY. CO. v. DREYFUS ET AL.

No. 3280.

Supreme Court of Oklahoma

June 23, 1914

Syllabus by the Court.

An act of God, such as a severe blizzard and snowstorm, which will excuse a carrier from liability for loss, must not only be the proximate cause of the loss, but it must be the sole cause, and though the loss may have been caused by an act of God, yet if the negligence of the defendant commingles with such act of God as an efficient contributing concurrent cause, and it appears from the evidence and the circumstances of the case that such injury would not have occurred except for such negligence, the company will be liable.

In an action for damage occasioned by a delay in shipment, the burden is upon the plaintiff to make out a prima facie case that the shipment was delivered to the carrier in good order and received from the carrier in damaged condition; and where the carrier denies liability because such loss was occasioned by an act of God, the burden is upon the carrier to show that such loss was the proximate result of the act of God, but when this is done, the burden then shifts to the shipper to show that negligence on the part of the carrier cooperated with the act of God in bringing about the damage to the shipment.

Where a carrier seeks to avoid liability for loss on account of a snowstorm, and there is conflicting testimony as to whether such carrier, notwithstanding such snowstorm, could, by the exercise of ordinary care or reasonable efforts, have prevented the loss, it is proper to submit such issue of fact to the jury.

An instruction "that the burden of proof is upon the defendant to satisfy the jury by its evidence, not only that the loss sustained by the plaintiff * * *" was occasioned by the act of God, but also that "the defendant exercised due care and diligence in the performance of its duty and was not in any manner negligent in doing or omitting to do any act that might have averted the loss," such instruction being unqualified or unmodified by other instructions, is an erroneous statement of the law.

Commissioners' Opinion, Division No. 2. Error from County Court, Tulsa County; N. G. Gubser, Judge.

Action by Henry M. Dreyfus and others, doing business as Dreyfus Bros., against the St. Louis & San Francisco Railway Company for damages. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

p>Page City, for plaintiff in error.

H. B Martin, of Tulsa, Charles E. Bush, of Lindsay, Cal., and John Y. Murry, Jr., of Tulsa, for defendants in error.

HARRISON C.

This is an appeal from a judgment rendered upon two separate causes of action based upon an alleged negligence in delivery of two separate shipments of bananas. There was no separate finding as to liability in each shipment, but a general verdict in the sum of $314.12 was found in favor of plaintiffs below. The grounds for reversal arose from the issues involved in the first cause of action, which was based upon the allegation that, by the careless and negligent failure to deliver a car of bananas, the fruit became frozen and damaged to the amount sued for. The carrier defended on the ground that the damage was not the result of the carrier's negligence but was the result of a severe snowstorm which froze and blocked up the switches and covered the tracks to such an extent that the car could not be delivered sooner than it was. The facts are that the car of fruit arrived at Tulsa between 7 and 8 o'clock on the evening of the 15th of February; that during the night of the 15th a blizzard and snowstorm came up and the weather turned severely cold; that the blizzard raged throughout the day and night of the 16th and the car was not set at plaintiffs' warehouse until the 17th.

The carrier maintained that it was...