E. O. Stanard Milling Co. v. White Line Cent. Transit Co.

• Citation: 26 S.W. 704
• Parties: E. O. STANARD MILLING CO. v. WHITE LINE CENT. TRANSIT CO.
• Decision Date: 24 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 704

E. O. STANARD MILLING CO. v. WHITE LINE CENT. TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

May 24, 1894.

NEW TRIAL — CARRIERS — INJURY TO FREIGHT — DEGREE OF CARE — PLEADING.

1. A court may grant a new trial for causes not assigned in the motion therefor.

2. Under a stipulation in a bill of lading that the company "agree to forward" and deliver the freight to the consignee, "the damages incident to railroad transportation, loss or damage by fire or the elements while at depots excepted," the company is not liable for damages

from those causes at depots where the cars containing the freight stop while in transit.

3. The permitting to be read in evidence a bill of lading to show freight charges is not error, though its effect was not limited to that purpose, when no instruction to so limit it was asked.

4. A railroad company is only bound to use the same diligence to save freight stored in its warehouse, at its destination, from fire, as it uses to save its own property, where the shipper has been notified that it is held subject to his order and at his risk.

5. In an action against a common carrier for the loss of freight, stored in its warehouse at its destination subject to the shipper's order, where plaintiff alleges that defendant negligently permitted it to be burned, the burden is upon him to show that fact.

6. Testimony that defendant owned the building in which the fire started that destroyed defendant's warehouse wherein plaintiff's flour was stored, and had leased it to a lard company, whose use of it made it dangerous to defendant's warehouse, situated near it, was inadmissible where defendant's negligence in that respect was not pleaded.

Appeal from St. Louis circuit court.

Action by the E. O. Stanard Milling Company against White Line Central Transit Company. From an order granting plaintiff a new trial, defendant appeals. Reversed.

E. W. Pattison, for appellant. Campbell & Ryan, for respondent.

BURGESS, J.

This is an action against the defendant on its common-law liability as a common carrier. The petition alleges that defendant "is a common carrier for goods for hire, and as such received from plaintiff certain flour to be carried to New York, and there delivered to plaintiff." It also avers that defendant carried the flour to New York; but did not deliver it to plaintiff, but stored it; that it reached its destination on the 27th, 28th, and 30th days of March, 1889, and was, on the 19th of April, 1889, while in defendant's possession, by reason of the failure of defendant to exercise reasonable and ordinary care of the flour while so stored, destroyed and lost to plaintiff. The value of the flour at the time of its destruction is alleged to be $2,542.50. Defendant, in its answer, admits the receipt and transportation of the flour; that it arrived at defendant's terminal depot in New York as alleged, and at the times mentioned in plaintiff's petition; but avers that it was transported under a special contract. It then, by way of defense, alleges that the contract exempted it from liability for loss or damage by fire while at depots; that on the next business day after the arrival of each shipment defendant gave plaintiff notice of such arrival, and that the flour was ready for delivery to plaintiff's order, and notified it that, if the flour was not removed within 24 hours, it would be stored at plaintiff's risk; that plaintiff did not remove the flour, nor order it delivered within the 24 hours; that thereupon defendant stored the flour, and held it without charge to plaintiff until it was destroyed by fire. The answer then denies all allegations of negligence, and then sets up by way of counterclaim its demand for freight on the flour, amounting to $261, which it avers plaintiff has never paid. Plaintiff, by way of reply, denied all allegations in the answer.

The evidence showed the following state of facts: That the flour arrived at the Sixteenth Street station of the New York Central & Hudson River Railroad Company, which was defendant's terminal depot in New York, on the respective days mentioned in the petition; that from and after its arrival defendant was ready to deliver it, lighterage free, at any point where plaintiff might order it delivered, on either side of the Hudson river or of the East river, or at Staten Island; that within 24 hours after the arrival of the flour, plaintiff was notified of its arrival, that it was ready for delivery, and that, unless an order were given for delivery within 24 hours thereafter, it would be stored at the risk of the owner, and defendant would no longer be liable as carrier; that by the custom prevailing in New York goods coming over the railroad lines consigned to persons in that city were permitted by the companies to remain at their depots, without charge to the consignees, until the latter should order them delivered; that plaintiff gave no order for the delivery of this flour until after its destruction by tire on April 19th, though it was held by defendant awaiting such order from 20 to 22 days; and that no payment or tender of the charges for transportation was ever made. The flour was all stored in the freight house on Pier D. This pier was entirely destroyed by the fire, as well as all but a small portion of its contents. Such portion of its contents as were removed were taken from the eastern or entrance end, where a space of about 40 feet was cleared, mostly on the north side. The freight house on this pier was a two-story building. The upper floor contained nothing but flour, — a hundred car loads or more, — and here two-thirds of plaintiff's flour was stored. The remaining third was stored on the lower floor, on the south side, and 300 feet from the eastern or entrance end of the building. The contents of the building when it burned were 203 car loads of freight. A large proportion of this was flour, of which there were 21,215 barrels and 1,151 sacks, or between 120 and 130 car loads. Two of plaintiff's witnesses — Haskell and Briggs — testified that it would have taken, under the most favorable circumstances, two dais to remove the contents of this building. That it would have taken a whole day to clear the lower floor, and to do that it would have required extraordinary facilities. Between Fifty-Ninth and Sixtieth streets there stood a double four-story brick building, owned by the N. W. C. R. R. Co., and divided by a three-foot party wall, the south half being occupied by the Rossiter Storage Company, the north half by the Wilcox Lard Company, a lessee of the railroad company, and an occupant of the building for seven or eight years prior to the fire. That this portion of the building was filled with fatty substances, the upper story containing tanks filled with oil, the floor being saturated therewith; and that the fire had broken out in an upper story of this building about February, 1888. The fire commenced between 3 and 4 o'clock in the afternoon, in the southern, or Wilcox half, of this building, which was usually called, as a whole, the "Rossiter Building." The railroad company had no control of this building, or any part of it. While the fire was burning in the southern half of this building, it communicated to the shed situated on the pier at the foot of Fifty-Ninth street, and consumed it, with its contents. After that the fire broke out in the northern half of the Rossiter building. From the Rossiter building it communicated to Elevator A, from that to Elevator B, and from B to Pier D, where the fire was stayed. The duration of the fire seems to have been between five and six hours. The various witnesses whose testimony was introduced by plaintiff vary somewhat in their estimates, as they do also as to the time at which the successive buildings took fire, and the length of the intervals between the ignition of the successive buildings. It seems to have been from four to four and a half hours after the first alarm that Pier D took fire. When the fire was first discovered it was not anticipated that it would extend as far north as Pier D. The officers of the fire department assured the officers of the railroad company that they would save the pier, and that they would have no need of moving the freight; that they would only be in the way, and, if left alone, they would save the pier. The fire chief expected at first to confine the fire to the building in which it had its origin. While Elevator A was on fire, and after Elevator B had caught, which was about three hours after the fire was first discovered, they expressed the conviction that there was no danger to the pier. Sparks and cinders, however, from the burning building were falling all over the yard. The danger from this source was met by defendant — first, by placing men with water and with brooms on the roofs of all the freight houses, and by running hose so as to play on the elevators and other buildings; secondly, by running the cars which were standing in the southern part of the yard, near the fire, up northwardly out of danger. While Elevator B was burning, and after Pier D was threatened, as much freight as possible was removed. The company put all of its own men, and as many men as it could hire from the crowd of bystanders, at work rolling out bales, boxes, barrels, and other freight. They worked about an hour, but did not succeed in clearing more than 40 feet of the north side of the eastern end. While the evidence showed that plaintiff's property was all consumed by the fire, it also showed that defendant did save a part of its own property. But it did not show that the defendant's servants or agents neglected property in its care in order to save the property of the company, or that any more care was exercised to save its own property than to save that which was in its keeping belonging to others.

At the close of plaintiff's evidence defendant asked the court to give the following instructions in the nature of a...