Strother v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13138.,13138.
• Court: Missouri Court of Appeals
• Parties: STROTHER v. ATCHISON, T. & S. F. RY. CO.

212 S.W. 404

STROTHER v. ATCHISON, T. & S. F. RY. CO.

No. 13138.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by John Strother against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Thomas R. Morrow, George J. Mersereau, John H. Lathrop, and J. D. M. Hamilton, all of Kansas City, for appellant.

Beardsley & Beardsley, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, in the state of Kansas, shipped a stallion over defendant's railroad from Abilene to Kiowa. During the transportation the stallion contracted pneumonia and died shortly after reaching destination. This suit was brought in Jackson county, Mo., to recover damages on account of his loss. A verdict of $1,600 in plaintiff's favor was returned, upon which judgment was rendered, and defendant appealed to this court. The case was transferred to the Supreme Court on the ground that constitutional questions were involved. It was held, however, that they were not timely raised, and the case was returned to us. Strother v. Atchison, etc., R. Co., 274 Mo. 272, 203 S. W. 207.

The petition pleaded sections 7116 and 7117 of the General Statutes of Kansas 1909, and the cause of action is bottomed upon a violation of said statutes. The first section provides that those operating railroads as common carriers shall transport all live stock received for transportation within the state without delay, and shall transport the same at a rate of speed not less than an average of 15 miles an hour for the entire distance over which said shipment is transported by rail within the state, unless prevented by unavoidable accidents. The second section provides that any common carrier which fails or refuses to transport such live stock at a rate of not less than 15 miles an hour shall be liable for all damages sustained by any person on that account and for all other damages which are the proximate result of such failure; other statutory and common-law remedies in addition to the remedy provided in said statute being preserved to the shipper.

The petition alleged that in the shipment of said stallion the defendant failed to comply with the provisions of said statutes, in that it failed to transport said stallion from the point of origin to destination at a rate of speed not less than an average of 15 miles an hour for the entire distance between said points; that said failure was not due to unavoidable accident; that the actual time consumed in moving said shipment from Abilene to Kiowa was unreasonably long; that the said stallion was in perfect health and condition at the time of its delivery to the defendant at Abilene, but because of the unreasonable length of time thereafter taken by the defendant to move it to Kiowa, said stallion contracted pneumonia, and died soon after reaching there; that the death of said stallion "was directly due to the carelessness and negligence of the defendant, its officers and agents, in failing to move said car from Abilene, Kan., to Kiowa, Kan., within the time prescribed by the statutes hereinbefore pleaded."

In addition to a general denial, the defendant pleaded that, at the time the stallion was alleged to have been offered for transportation from Abilene to Kiowa, the defendant could not accept it for shipment by reason of the fact that it was impossible for defendant to move any of its freight trains from Abilene during the time beginning with the 2d day of March and continuing until the 4th day of March, 1912, on account of an unusual and unprecedented snow blockade existing during that time upon its line of railroad; that defendant was in no way responsible for said conditions, and on account of the unprecedented snow blockade, and for no other reason, the defendant refused to accept said stallion for transportation until March 4, 1912; that, although all possible diligence was exercised, defendant could not get its line from Abilene to Kiowa open for traffic until the 4th of March, 1912, and that as soon as the line was open it did accept and transport said stallion from Abilene to Kiowa; that, if there was any delay in transportation after said stallion had been accepted for transportation, it was due entirely to the unprecedented conditions caused by the snow blockade which existed prior to the acceptance of said shipment, and the consequences thereof were not entirely removed at the time the shipment was received.

The answer then set up certain provisions in the shipping contract whereby it was asserted that the value of the stallion was fixed at and limited to the sum of $100, whereby the lowest rate applicable to the transportation of said stallion was obtained, and also pleaded certain Kansas statutes, certain orders of the Kansas Public Utilities Commission, and decisions of the Supreme Court of Kansas, under and by virtue of which it was asserted that the limited valuation of $100 placed on said stallion in said shipping contract was legal, valid, and binding upon plaintiff, and that defendant in no event could be held liable for damages in excess of said valuation.

Plaintiff in reply pleaded certain statutes of Kansas and also decisions of the Supreme Court of that state construing the Kansas statutes, under which the provision in the bill of lading which is claimed to limit the liability of defendant was asserted to be of no binding force or effect.

As the shipping contract was executed and fully performed wholly in the state of Kansas, the case is governed and controlled by the laws and decisions of that state. Yost v. Union Pacific R. Co., 245 Mo. 219, 149 S. W. 577; Newlin v. St. Louis, etc., R. Co., 222 Mo. 375, 121 S. W. 125; Liebing v. Mutual Life Ins. Co., 207 S. W. 230.

Plaintiff purchased the stallion at Beloit, Kan., and shipped it from there to Abilene over the Union Pacific Railroad on a contract for that portion of the journey only; the agreement of the Union Pacific being to deliver the car containing the horse to the defendant at Abilene for carriage by the latter from Abilene to Kiowa. The horse was shipped from Beloit on March 1, 1912, and arrived at Abilene (the plaintiff accompanying the shipment) somewhere between midnight and 2 o'clock in the morning of Saturday March 2, 1912. The car containing the horse and his feed was set by the Union Pacific Railway Company on the transfer track connecting the two roads at that point. The defendant's station at Abilene was a day station; there being no night trains operated over its lines at that point. The business hours of the station were from 7 a. m. to 6 p. m. The transfer track was about three-fourths of a mile west of the Santa Fé station, and was used for the purpose of transferring freight, when in carload lots, from the Union Pacific to the Santa Fe, and vice versa. It was the only track over which cars could be delivered from one railroad to the other.

Upon reaching Abilene, the ear was set by the Union Pacific on this transfer track, and the plaintiff, after looking after and caring for the comfort of his horse, went to a hotel and retired. According to plaintiff's testimony, some snow had fallen at Beloit prior to the day he started which had melted to some extent; and, although no snow fell the day he left Beloit, yet during the trip from Beloit to Abilene it began snowing, and was snowing hard when he arrived at the latter place. By the time he reached there the snow was from 4 to 5 feet deep where it had drifted. Pour or 5 inches of snow had fallen that night. It did not stop snowing until Saturday night, and the entire fall of snow was about 8 or 10 inches. During this time it was cold and growing colder; the temperature falling to about zero.

On Saturday morning, March 2d, the plaintiff went to the Santa Fé station between 7 and 8 o'clock to arrange for the transportation of the horse from Abilene to Kiowa. He says the assistant agent told him the Santa Fé was blockaded by snow, and that for this reason the Santa Fé could not accept the horse for transportation; that about this time the agent came in, and he wired to the superintendent for advice as to whether the horse could be accepted; that soon thereafter plaintiff was told that they were instructed not to accept the horse. Thereupon plaintiff says he went to the Union Pacific agent and asked to have the car placed at the unloading platform so he could take the horse out of the car and care for him. The Union Pacific agent, having no engines, told him they would be unable to do so, but, at plaintiff's request, telephoned the Santa Fé agent to inquire whether that road would be able to place the car at their unloading station. Plaintiff himself went back to the Santa Fé agent and made the same request, but was told that they would be unable to do so until an engine came in, as they had none at Abilene. About 6 o'clock Saturday evening a Santa Fé train from Salina, on a short branch line running west from Abilene, came in, and the engine thereof was hooked on to the car containing plaintiff's horse and pulled over on to the Santa Fe house track about 75 yards from the depot, but not up to the unloading platform. The plaintiff says he requested the crew to put the car at the unloading platform, but they refused; that he then requested the station agent to have the car placed at the unloading platform, and the latter promised that the next engine that came in he would have that done. Defendant's evidence is that the request on Saturday was to put the car containing the horse on the house track, and that the request to have the car set at the unloading platform was not made till Sunday afternoon, and that this was the time when the agent promised that as soon as another engine came in he would have the car set at the unloading platform.

The horse remained in the car on the house...