The Lamar Manufacturing Co. v. St. Louis & San Francisco Railroad Co.

• Decision Date: 05 March 1906
• Citation: 93 S.W. 851,117 Mo.App. 453
• Parties: THE LAMAR MANUFACTURING COMPANY, Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

93 S.W. 851

117 Mo.App. 453

THE LAMAR MANUFACTURING COMPANY, Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 5, 1906

Appeal from Barton Circuit Court.--Hon. Henry C. Timmonds, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

L. F Parker and Woodruff & Mann for appellant.

(1) There was no evidence either on part of plaintiffs or defendants which could, by any hook or crook, be construed that defendant did become aware of the impending and approaching flood in time to have removed the goods to a place of safety. (2) We think not, and that the giving of these instructions was error. The statement that instructions which there is no evidence to support should not be given hardly needs the citation of authorities to support it. Mfg. Co. v. Shreve, 94 Mo.App. 518-525; Marr v Bunker, 92 Mo.App. 661; Railroad v. Railroad, 118 Mo. 625; Paddock v. Somers, 102 Mo. 239. (3) And the burden of showing this knowledge on defendant's part was upon plaintiffs. Read v. Railroad, 60 Mo. 199. (4) The court should have peremptorily instructed the jury to find for defendant at the close of all the evidence. (5) After defendant had accounted for the loss of the goods by the Act of God, it was not for it to show the possession of said goods at said time and place on a theory consistent with due care, but for plaintiffs to show said possession at said time and place on a theory inconsistent therewith. That such theory must not rest upon bare conjecture, but must rest either upon direct proof or upon proof of facts establishing such theory by logical inference is stated by all the authorities. Breen v. Coop. Co., 50 Mo.App. 214; Epperson v. Tel. & Cable Co., 155 Mo. 382; Fuchs v. St. Louis, 133 Mo. 196; Fuchs v. St. Louis, 167 Mo. 635; Glasscock v. Dry Goods Co., 106 Mo.App 664; Yarnell v. Railroad, 113 Mo. 570; Hornstein v. United Railways, 97 Mo.App. 277; Norville v. Railroad, 60 Mo.App. 416.

Cole, Burnett & Moore for respondents.

(1) Appellant could not convict the trial court of error for overruling demurrers to the evidence, and the same reason effectually answers appellant's complaint that the court erred in giving respondents' instructions numbered 2 and 3 and in submitting to the jury the issue as to appellant's negligence in permitting the goods to be submerged; since appellant submitted the very same issue in its instruction numbered 5, given without objection, and requested it in numbered 6, refused. These instructions clearly recognize that there was some evidence of negligence, in connection with the Act of God, and by the well-established law they silence and estop appellant from asserting the contrary. Merrielees v. Railway, 163 Mo. 486; Phelps v. City, 161 Mo. 1-14; Seiter v. Bischoff, 63 Mo.App. 160; Mercantile Co. v. Burrell, 66 Mo.App. 121-2; Hopkins v. M. W. of A., 94 Mo.App. 409. (2) A party is not "entitled to a reversal on a theory of law in conflict with the instructions which were given at his instance," and having injected that issue into the case appellant is deprived of the Moffatt doctrine. Horgan v. Brady, 155 Mo. 670. (3) Any and all of the foregoing propositions relieve the court from the necessity of considering the question of negligence; but if the court for any reason should take it up, we insist that there was ample substantial evidence before the jury even to satisfy the latest rulings on the question of negligence concurrent with the Act of God. Bank v. Railway, 69 Mo.App. 253; Bishop v. Ins. Co., 85 Mo.App. 306; Sloop v. Railroad, 84 S.W. 111-113; Davis v. Railway, 89 Mo. 348; Davis v. Railway, 13 Mo.App. 454. (4) Furthermore the presumption of law is that when the goods were delivered at Lamar in a ruined condition by the Frisco, as terminal carrier, that road's negligence caused the loss, for the shipper cannot follow his goods and tell just where and how they were injured. Flynn v. Railway, 43 Mo.App. 438 et seq.; Lin v. Railway, 10 Mo.App. 129-130; Bevis v. Railway, 26 Mo.App. 25; Crouch v. Railway, 42 Mo.App. 252; 6 Cyc. 490; Lawson on Presumptive Evi., p. 166d; Heck v. Railway, 51 Mo.App. 533; Cash v. Railroad, 81 Mo.App. 115; Bevis v. Railway, 30 Mo.App. 566; Hance v. Express Co., 48 Mo.App. 185. (5) Counsel refer to the Moffatt decision in a manner to indicate they think it necessarily disposes of this case adversely to respondents, and that there can be no recovery in a case involving such an Act of God; the case does not so hold, and such is not the law. Moffatt v. Railway, 88 S.W. 117; Davis v. Railway, 89 Mo. 347; Prince v. Compress Co., 86 S.W. 878; Ordelheide v. Railroad, 80 Mo.App. 369; Rutledge v. Railroad, 123 Mo. 140.

OPINION

JOHNSON, J.

Action against a common carrier brought by the consignees and owners of certain merchandise to recover damages for injury thereto, alleged to have been caused by the negligence of defendant. Plaintiffs had judgment and defendant appealed.

Plaintiffs, retail merchants in Lamar, purchased the goods of a wholesale concern in St. Joseph. The latter made two shipments of them, both over the line of the St. Joseph & Grand Island Railroad Company. The first was delivered to the carrier at St. Joseph in the afternoon of May 26, 1903, and the second two days later. The line of this carrier terminates at Kansas City and from there the goods when shipped were routed over defendant's road to their destination. The petition is in two counts, one for each shipment; and the negligence charged with respect to the first shipment is, "that by the default and miscarriage of the defendant and by reason of its unreasonable delays and its careless and negligent handling of said goods it failed to deliver said goods to plaintiffs in good order, but on or about the 25th day of July, 1903, defendant delivered said goods at Lamar" so damaged and spoiled that their value was less than the freight charges upon them. The allegations relating to the second shipment are the same excepting as to the date of delivery, which was July 5, 1903.

The defense is that the goods were damaged not by any negligence of defendant, but by the Act of God, that is, they were caught in the extraordinary flood of 1903 that wrought such havoc in the bottoms of the Missouri and Kansas rivers at Kansas City. At the conclusion of the evidence, defendant requested the giving of a peremptory instruction in its favor, which the court refused and the issues of fact submitted to the jury very clearly appear in this extract from the instruction given.

"And, if you shall further believe from the evidence that said goods were destroyed or damaged while in the possession of defendant and that they were so destroyed or damaged by reason of negligence on the part of defendant, then your verdict should be in favor of the plaintiffs. But, if you shall believe from the evidence that said goods were so destroyed or damaged by reason of a sudden and extraordinary flood after coming into the possession of the defendant at Kansas City (if they did so come into its possession), your verdict should be in favor of the defendant unless you shall further believe from the evidence that defendant became aware of the impending and approaching flood in time to have removed the goods to a place of safety by the exercise of ordinary care and diligence. If you shall believe from the evidence that the defendant did become aware of the impending and approaching flood, if there was one, in time to remove them to a place of safety by the exercise of ordinary care and diligence, then the flood does not excuse it, and your verdict should be for the plaintiffs."

Defendant's contention is that there is no evidence in the record accusing it of negligence; that all of the evidence points to the Act of God as the proximate cause of the injury and therefore the case should not have gone to the jury.

We think it is fairly inferable from the facts appearing in the evidence introduced by plaintiffs that both shipments of goods were in the possession of defendant for carriage to their destination during Saturday, May 30th, and thereafter that defendant had negligently delayed forwarding them and that, had the usual and reasonable diligence been employed, the goods would have escaped the flood; but all this may be true and still the facts in proof fall short of showing that the injury was the direct and not a remote result of defendant's negligence. As was well stated by ELLISON, J., in the case of Moffatt v. Railroad Co., 113 Mo.App. 544, 88 S.W. 117. "Whenever the negligence of the carrier mingles with the Act of God as a co-operative cause, the carrier is liable provided the resulting loss is within the probable consequences of...