Sturgeon v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 569
• Parties: STURGEON v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 569

STURGEON

v.ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Montgomery Circuit Court.--HON. G. PORTER, Judge.

At the request of defendant the court gave the following instruction:

3. Although the jury may believe, from the evidence, that the plaintiff did, on or about the 20th day of January, 1873, deliver to the defendant two car loads of hogs, to be transported or conveyed from Wellsville, in Montgomery county, to the City of St. Louis, and that one of said hogs was lost, after the same was received by defendants, yet, if the jury further find from the evidence, that before said hogs were shipped from Wellsville, the plaintiff and defendant entered into a written or printed contract, signed by them or their authorized agents, by the terms of which said contract it was agreed that plaintiff should take care of said freight while on the trip, and load and unload the same at his own risk and expense, then the burden of proof is upon the plaintiff to show how said hog was lost, and the plaintiff is also bound to show, to the satisfaction of the jury, that said hog was lost by reason of the negligence of the defendant or its agents or servants; and unless the plaintiff has shown said hog was lost, and also that such loss was caused by the negligence of the defendant or its agents, then the finding must be for the defendant as to the amount claimed for the lost hog.Wells H. Blodgett for appellant, cited, Ranney v. Bader, 48 Mo. 540; Bigelow v. N. Mo. R. R. Co., Ib. 512; St. Louis v. Allen, 53 Mo. 44; Hickey v. Ryan, 15 Mo. 62; Newman v. Lawless, 6 Mo. 279; Fugate v. Carter, Ib. 267; Coleman v. Roberts, 1 Mo. 97; Smith v. N. H. & N. R. R., 12 Allen 531; Faulkner v. S. P. R. R., 51 Mo. 311; Ward v. N. Y. C. R. R. Co., 47 N. Y. 29; Penn v. B. & E. R. R. Co., 49 N. Y. 204; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Bankard v. B. & O. R. R. Co., 34 Md. 197; Lake Shore & M. S. R. R. Co. v. Perkins 25 Mich. 329, Ballentine v. N. Mo. R. R., 40 Mo. 491; Mich. So. & N. Ind. R. Co. v. McDonough, 21 Mich. 165.

John M. Barker for respondent.

It was impossible for the appellee to take care o the freight while on the trip. The whole management of the train and its construction is involved in such a duty, and the assumption in defendant's third instruction, that plaintiff was bound to show how the hog was lost, is erroneous; the evidence showed it was lost while in the appellant's care and custody. The idea assumed by common carriers that they can reap all the rewards of their avocation and absorb all the privileges of fostering legislation, and yet shirk their plainest duties to the public, under the guise o special contracts, reduced rates, and styling themselves “forwarders,” is emphatically repudiated by the courts. Ketchum v. American M. U. Ex. Co., 52 Mo. 390; Levering v. U. Transp. Co., 42 Mo. 88.

NAPTON, J.

The judgment in this case must be reversed, because the petition stated two separate and distinct causes of action, upon which a general verdict was rendered, and the motion in arrest of judgment specifically directed the attention of the court to this objection. Owens v. H. & St. J. R. R. Co., 58 Mo. 394, and cases there cited.

The first instruction given by the court for the plaintiff, is objected to, as leaving to the jury to determine a question of law, but this construction of it seems rather hypercritical. It speaks of the defendant as a common carrier, but proceeds to state what responsibilities the defendant incurred in that capacity, so far as the case in hand required and to assert that notwithstanding the special contract which had been read in evidence, the defendant was still responsible for any “negligence, misconduct or carelessness resulting in loss to the plaintiff.” And this was in conformity to the doctrine repeatedly maintained by this court. The next instruction points out the measure of damages which in the event that the negligence of defendant was the cause of them, is stated to be “the difference in the market worth of the hogs when they ought to have been delivered, and when they were actually delivered.” To this no...