Utz v. Chicago, B. & Q. Ry. Co.

• Decision Date: 02 December 1918
• Docket Number: No. 12814.,12814.
• Citation: 208 S.W. 640
• Parties: UTZ v. CHICAGO, B. & Q. RY. CO.
• Court: Missouri Court of Appeals

208 S.W. 640

UTZ v. CHICAGO, B. & Q. RY. CO.

No. 12814.

Kansas City Court of Appeals, Missouri.

December 2, 1918.

Appeal from Circuit Court, Buchanan County; Hon. L. A. Varies, Judge.

"Not to be officially published."

Action by Silas B. Utz against the Chicago, Burlington & Quincy Railway Company. From a judgment for defendant appeals. Affirmed.

M. G. Roberts, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff shipped two carloads of mules from the stockyards in St. Joseph, Ea., to East St. Louis, Ill. The cars were loaded at the stockyards and taken thence by a local railway, know a as the St. Joseph Belt railway Company, to defendant's main tracks at St. Joseph; from which place they were taken by defendant to destination in Illinois. The mules were injured while in the actual possession of the Belt Railway Company through the negligence of that company. Plaintiff instituted this action against defendant, and recovered judgment in the trial court.

It is conceded by plaintiff that the mules were in the manual or actual possession of the Belt Company crew while being taken from the stockyards "loading dock" to the defendant's tracks, about one-half mile away. He, however, claims that the defendant received the mules at the stockyards, and that they were taken over to defendant's track in its cars, by the Belt Company as agent for defendant. Defendant denies this, and contends that the Belt Company was the initial carrier, transporting the animals independently to defendant's track, and there delivering, them over to defendant to be taken to destination; and, as no damage was done them after being received from the Belt company, no liability attaches to defendant under the Carmack Amendment to the Interstate Commerce Act as amended by the first and second Cummins Amendments. If defendant is right in its claim as to the facts, the legal result it contends for would. For it is held that if the injury complained of was not occasioned by the connecting carrier, but resulted from the negligence of the initial carrier, the former is not liable. Pennington v. Grand Trunk By., 277 Ill. 39, 115 N. E. 170; Johnson-Brown Co. v. Delaware, L. & W. By. Co. (D. C.) 239 Fed. 590.

But we are of the opinion that the facts are not as defendant sees them. The evidence shows, and it has been found by the jury, that It received the mules et the stockyards and issued its bill of lading there, whereby it agreed to transport the mules from there to East St. Louis, This bill of lading is signed: "Chicago, Burlington & Quincy Railroad Co., by E. B. Estes, Agent at St. Joseph Stockyards, Missouri." In addition to this, the evidence showed that defendant furnished the cars at the stockyards for shipments like the present, and that the Belt Company took them to defendant's track for defendant.

During the trial improper evidence on the measure of damages was...