Vencill v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 15 October 1908 |
| Citation | 112 S.W. 1030,132 Mo.App. 722 |
| Parties | ROBERT L. VENCILL, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.
AFFIRMED.
Judgment affirmed.
J. G Trimble and Hall & Hall for appellant.
(1) To entitle plaintiff to recover, the notice must have been actually received. Smith v. Railroad, 112 Mo.App 610; McBeah v. Railroad, 20 Mo.App. 445; Brown v. Railroad, 18 Mo.App. 577; Dawson v Railroad, 76 Mo. 514; Thompson v. Railroad, 22 Mo.App. 326; Boot & Shoe Co. v. Telegraph Co., 49 Mo.App. 99; Crow v. Railroad, 57 Mo.App. 135. (2) There was no waiver of this condition of the contract as to notice. The ten days' notice had already expired at the time the notice was received and the plaintiff could not be misled by any act or statement of appellant or its agents. Hamilton v. Railroad, 80 Mo.App. 601; Mensing v. Insurance Co., 36 Mo.App. 602; Maddox v. Insurance Co., 39 Mo.App. 198; Ratliff Bros. v. Railroad, 118 Mo.App. 644. (3) The court should have sustained the demurrer to the evidence for the reason that there was no evidence of negligence or unnecessary delay in the shipment. Ficklin v. Railroad, 117 Mo.App. 225; McFall v. Railroad, 117 Mo.App. 477; Schwab v. Union Line, 13 Mo.App. 162; Guinn v. Railroad, 20 Mo.App. 459; Dawson v. Railroad, 79 Mo. 300. (4) Mere proof of delay is not proof of negligence. There must be something additional which characterizes the delay as culpable. McCrary v. Railroad, 109 Mo.App. 569; Anderson v. Railroad, 93 Mo.App. 677; Wright v. Railroad, 118 Mo.App. 555; Ecton v. Railroad, 102 S.W. (Mo. App.) 576. (5) In this case the appellant's agent notified the plaintiff at once on the breaking down of the engine and of the probable delay, and advised and requested plaintiff to unload his stock and wait for the next train, or ship his stock over another road, which plaintiff refused to do. Instead of guarding against and trying to prevent the damages as the laws required, he knowingly invited it and cannot recover therefor. Harrison v. Railroad, 88 Mo. 634; Dietrich v. Railroad, 89 Mo.App. 36; Logan v. Railroad, 96 Mo.App. 464. (6) The burden of proof was on the plaintiffs to show that defendant was guilty of the specific negligence charged and the court erred in giving plaintiffs' instructions. Whiting v. Railroad, 101 Mo. 631; 28 Mo.App. 103; Clark v. Railroad, 64 Mo. 440; Chemical Co. v. Lackawanna Line, 78 Mo.App. 305; Crow v. Railroad, 57 Mo.App. 135; Galm v. Railroad. 113 Mo.App. 591; Chitty v. Railroad, 148 Mo. 75; McManamee v. Railroad, 135 Mo. 447; Feary v. Railroad, 162 Mo. 96; Lachner Bros. v. Express Co., 72 Mo.App. 17; Waldhier v. Railroad, 71 Mo. 514; Bartley v. Railroad, 148 Mo. 139; Hite v. Railroad, 130 Mo. 132; Ecton v. Railroad, 102 S.W. (Mo. App.) 576. (7) The trial court erred in excluding the evidence offered by appellant to prove that after the engine broke down, appellant's agent informed and requested plaintiff to unload his cattle and wait until the next train or ship over the Wabash. Appellant had the right and it was its duty to notify plaintiff of the delay in order to protect itself from liability on account of the delay. Schwab v. Union Line, 13 Mo.App. 162; Guinn v. Railroad, 20 Mo.App. 459; Dawson v. Railroad, 97 Mo. 300; Chambers v. Board of Education, 60 Mo. 379.
Hugh C. Smith for respondent.
(1) The contract provides return transportation will not be given. This is against positive law. R. S. 1899, sec. 1085. Therefore the written contract became a mere bill of lading and no notice was required. Ficklin & Sons v. Railroad, 115 Mo. 637. (2) But the question of necessity of notice in this case is immaterial. It was waived by the general freight agent's asking time to investigate, for further information, by his failure to object on the ground of no notice, and his consideration of the claim on its merits. McFall v. Railroad, 117 Mo.App. 484; Summers v. Railroad, 114 Mo.App. 452; Ratliff Bros v. Railroad, 118 Mo.App. 645; 5 Am. and Eng. Ency. Law (2 Ed.), pp. 455, 456, 457. (3) It is immaterial whether the correspondence with appellant's general freight agent, in order to constitute a "waiver" was within or beyond the ten-day limit. No claim is made here that appellant did anything within the ten days to mislead respondent or to cause respondent to believe that notice would not be required; but waiver is claimed in this case upon the subsequent correspondence and conduct of appellant's general freight agent, which shows conclusively that the claim was considered upon its merits, thus showing that the notice was either actually received by him within the ten days; or that the requirement as to notice was "treated by defendant as of no importance," and the clause in the contract so providing rescinded. Rice v. Railroad, 63 Mo. 322; Harned v. Railroad, 51 Mo.App. 488; LaForce v. Insurance Co., 43 Mo.App. 528; Dezell v. Fidelity & Casualty Co., 176 Mo. 266; McComas v. Insurance Co., 56 Mo. 573; Bushnell v. Railroad, 118 Mo.App. 628; Stipel v. Insurance Co., 55 Mo.App. 224; Fink v. Insurance Co., 60 Mo.App. 673; Hamilton v. Railroad, 80 Mo.App. 597; Hess v. Railroad, 40 Mo.App. 206; Livery Co. v. Railroad, 113 Mo.App. 149; Ingwerson v. Railroad, 116 Mo.App. 151; Jones Bros. v. Railroad, 117 Mo.App. 527; Bank v. Railroad, 119 Mo.App. 14; Ward v. Railroad, 158 Mo. 226; Wright v. Railroad, 118 Mo.App. 392; Leonard v. Railroad, 54 Mo.App. 293; McComas v. Insurance Co., 56 Mo. 573; Livery Co. v. Railroad, 113 Mo.App. 150. (4) The evidence of appellant's negligence was sufficient to take the case to the jury, and ample to sustain the verdict. Sloop v. Railroad, 93 Mo.App. 605. The breaking down of the engine was a circumstance which in itself bespeaks negligence, and thus a primafacie case was made by such showing. McFall v. Railroad, 117 Mo.App. 477; McCrary v. Railroad, 109 Mo.App. 570; Tucker v. Railroad, 50 Mo. 386; 6 Cyc., p. 443; Gann v. Railroad, 72 Mo.App. 41; Rice v. Railroad, 106 Mo. 371. (5) The question of negligent delay was for the jury and the evidence warranted the verdict. Bushnell v. Railroad, 118 Mo.App. 618; Fulbright v. Railroad, 118 Mo.App. 482; Buffington v. Railroad, 118 Mo.App. 476; Ficklin v. Railroad, 117 Mo.App. 211; Sloop v. Railroad, 117 Mo.App. 204; Klass Comm. Co. v. Railroad, 80 Mo.App. 164; Crow v. Railroad, 57 Mo.App. 135; Cash v. Railroad, 81 Mo.App. 109; McCann v. Eddy, 133 Mo. 59; Jones v. Railroad, 89 Mo.App. 653; McFall v. Railroad, 117 Mo.App. 477.
Plaintiff sued defendant, a common carrier, for damages alleged to have resulted from defendant's negligent failure to transport his cattle, consisting of forty-seven head, from Galt to South St. Joseph, within a reasonable time. Plaintiff claims the cattle were received by defendant for shipment at 4 o'clock in the afternoon of December 11, 1904, and should have arrived at their destination at 10 o'clock or earlier on the same day, but on account of defendant's negligence, they did not arrive until 12 o'clock the next day--too late for the morning market; that he thereby lost the benefit of the morning market and in the afternoon he sold thirty-three head of the cattle, at which time the market had declined; that he was unable to sell all of said cattle on that day, but was compelled to keep fourteen head which were sold on the market the following day, the price in the meantime having further declined; that owing to the careless manner in which the cattle were transported, they were bruised and depressed which produced a shrinkage in weight, thereby causing plaintiff additional loss; and, further, that he was subjected to the expense of feeding the cattle that were not sold the day of arrival.
The answer was a general denial and the further defense that plaintiff shipped his cattle over defendant's railroad under the terms of a certain written contract (attached to and made part of the petition), the terms of which plaintiff failed to keep and perform, and that any damages which may have been sustained were caused by plaintiff's own negligence and lack of care and attention to said cattle. Further, it was claimed that plaintiff failed to give to defendant notice of damages as required by the terms of the contract. To this answer plaintiff replied by a general denial.
It appears from the evidence that the cattle were loaded between 5 and 6 o'clock in the evening of the day mentioned and the train that was to take them arrived at Galt about 7 o'clock. The cars in which they were loaded were placed therein and the train pulled on to the main line. The train was what is called a "double-header," i. e., drawn by two engines. In putting these cars in the train and switching, the end sill of one of the engines was broken, which disabled the front drawbar so that it became unsafe to use the engine. The employees of defendant telegraphed to Milan for another engine which came in time for the train to start about 11:30 p. m. The night was stormy and enough snow fell to retard the progress of the train. Some time was lost at Pattonsburg and the train did not reach Osborn until about 8 o'clock the next morning, when the cattle were switched to the Hannibal & St. Joseph railroad, reaching the Burlington station in South St. Joseph about 10 o'clock a. m., and being delivered to the stock yards company about one hour and a half thereafter. They were received by plaintiff's consignees about 12 o'clock, were put upon the market, thirty-three head sold that day, and the remaining fourteen head held over and sold the next day.
The evidence tended to sustain plaintiff's allegation of damages in the most important particulars and, further, to show that...
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