Todd v. St. Louis-San Francisco Ry. Co.
| Decision Date | 26 October 1929 |
| Docket Number | No. 4467.,4467. |
| Citation | 21 S.W.2d 1 |
| Parties | TODD v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
Action by J. Frank Todd, doing business as the Highway Stone Company, against the St. Louis-San Francisco Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
A. G. Young, of Webb City, for appellant.
E. T. Miller, of St. Louis, and Mann & Mann, of Springfield, for respondent.
Action to recover for expenses incurred by plaintiff in making light repairs on cars furnished plaintiff by defendant in which to ship sand. Trial by court, and issues found for defendant. Plaintiff appealed.
Plaintiff's evidence tends to show: That plaintiff was engaged in shipping crushed stone, chats, and sand to be used chiefly in road building. From August 12 to November 6, 1926, plaintiff had a contract to furnish material for use in building state highways. That he did furnish for that purpose large amounts of crushed stone, chats, and sand which were shipped in car load lots over defendant's railroad. That he was required to furnish three to five cars of sand per day as well as large quantities of rock and chats, and he must make prompt shipment in order to fulfill his contract. That about one-half the cars furnished in which to ship sand were unfit for the purpose because of holes in the floor and cracks in the sides of the cars, through which the sand would leak out. That plaintiff could not reject the cars and wait for others to be furnished on account of the necessity for immediate use of the cars, and for that reason he made repairs on them by nailing boards over the holes in the floors and strips over the cracks in the sides of the car or by stopping these cracks with burlap. He kept an account of the number of each car on which he made repairs and the amount expended for material and labor upon each car. A demurrer to plaintiff's evidence was filed and overruled. The respondent contends now that plaintiff did not make a case for the jury and for that reason there could be no error in the court finding for defendant. We are cited to Sloan v. R. R., 58 Mo. 220, and Rosenthal v. Ry., 40 Mo. App. 579, to sustain that contention. We do not regard these cases as directly in point.
The general rule, as we understand it, is that it is the duty of the railroad to furnish cars suitable for use in making the particular shipments for which they are ordered, and if they are used by the shipper without discovering or being charged with notice of their condition and damage results, he can recover. On the same principle, if he does discover the defect and cannot reject the car and wait for another to be furnished without material loss to him, and he can, at slight expense, repair the car and save loss that would likely occur, it would be better for both him and the carrier that he make the repairs and prevent the loss or damage, and in that case the carrier could better pay the cost of slight repairs than to pay the damage that would result if the repairs were not made. If the shipper discovers the defect and can without material loss to himself reject the car and wait for another to be furnished, he should adopt that course, for, except in emergency cases, it is the right as well as the duty of the carrier to repair its own cars, and the shipper cannot perform that duty for the carrier...
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