Warner v. St. Louis-San Francisco Railway Co.

• Decision Date: 01 July 1925
• Citation: Warner v. St. Louis-San Francisco Railway Co., 274 S.W. 90, 218 Mo.App. 314 (Mo. App. 1925)
• Parties: E. S. WARNER, E. L. LORANCE, and J. E. GAMMON, Respondents, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Court of Appeals

274 S.W. 90

218 Mo.App. 314

E. S. WARNER, E. L. LORANCE, and J. E. GAMMON, Respondents, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

Court of Appeals of Missouri, Springfield

July 1, 1925

Appeal from the Circuit Court of Laclede County.--Hon. W. E. Barton Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

W. F Evans and E. T. Miller, of St. Louis, Mann & Mann, of Springfield, and Frank H. Farris, of Rolla, for appellant.

(1) A railroad company is bound to furnish suitable cars required by customers whenever it can be done with reasonable diligence, without jeopardizing its other business.6 Cyc 372.A railroad company is bound to provide sufficient cars for transporting, without unreasonable delay, the usual and ordinary quantity of freight offered to them, or which might reasonably and ordinarily be expected.4 R. C. L. 672;Howell v. Hines,236 S.W. 887 and 888, and cases cited.(2) Excuse for not furnishing cars and for delay in transportation.Inability to furnish cars, except by undue interference with the general business of the company and the rights of other shippers, will constitute a defense in an action for failure to furnish cars.6 Cyc. 373.In general, a carrier is not bound to anticipate any unprecedented condition of affairs, at least not to the extent of taking steps to provide against it.So in the case of a strike in mines, in which it is in the habit of obtaining its coal necessitating the sending of its cars to a distant point to procure a supply of coal for its engines, it will not be liable for a refusal to furnish cars to another mine in operation in the strike district.4 R. C. L. 674.Not only storms and floods and other natural causes will excuse delay but the conduct of men will also do it.4 R. C. L. 744;Giesmer v. Lake Shore & Mich. Ry.,55 Am. Rep. 837.It is also said that where conditions confront a railroad, or where from any other cause there is an unexpected and extraordinary influx of business to the road, its obligation will be fully met by shipping such stock or produce in the order and priority of time in which it is offered.4 R. C. L. 673;Howell v. Hines,236 S.W. 887 and 888, and cases cited.As to strikes, the old rule seems to have been that where delay results solely from the lawless violence of the strikers, the carrier was not responsible; but where the employees of a company suddenly abandon its service, and offer no violence, and causes no forcible obstruction to its business, and simply refuse to work, or further discharge their duties, for any delay consequent thereon, for instance, where there is a failure to supply promptly their places, the carrier was liable.4 R. C. L. 744;Pittsburg, Ft. Wayne & Chicago v. Hazen,84 Ill. 36, 25 Am. Rep. 423;Pittsburg, etc., Ry. v. Hollowell,65 Ind. 188, 32 Am. Rep. 63;Giesmer v. Lake Shore & Mich. Ry.,55 Am. Rep. 839;Panhandle v. S. F. Ry.,235 S.W. 914;Jonesborough L. & C. and E. R. Co. v. Maddy,248 S.W. 913.Whatever may have been the earlier rule on the question of strikes it now seems to be the well-established rule that strikes or stoppage of labor which bring about a delay in the furnishing of facilities for transportation of goods and cattle as well as the actual delay in the transportation of the same can be pleaded as a defense in an action for failure to furnish facilities or to transport without delay.All that is required of the carrier in cases of strikes or stoppage of labor is that it shall exercise diligence to take care of the situation as presented in the securing of necessary labor or means to meet the emergency.Pennsylvania R. Co. v. Olivit Brothers,243 U.S. 575;American Fruit Distributors v. Hines,203 P. 821, 825;Warren et al. v. Portland Terminal Co.,116 A. 411;Leavens v. Express Co.,85 A. 558;Murphy Hardware Co. v. Southern Ry.,64 S.E. 873.And the question as to whether the strike or the stoppage of labor prevented the carrier from performing its common-law duty in the furnishing of transportation facilities or in the carriage of freight, or whether it prevented the carrier from performing an obligation to furnish cars or to carry freight under the terms of a bill of lading or a contract is a question to be submitted to the jury.See cases cited above;Panhandle & S. F. Ry. Co. v. Thompson,235 S.W. 914;Stillman v. Chicago, R. I. & P. Co.,192 N.W. 860, 862.In an action by shipper against a carrier for discrimination and failure to furnish cars, the question as to whether or not the demand for cars was so great that it could not have been anticipated, or by the exercise of reasonable care been supplied, is a question for the jury.Chicago, R. I. & P. Ry. Co. v. Simms,256 S.W. 34.We are aware of the case of Reed v. Railway, in the60 Mo. 207, wherein the court says that it was a correct declaration of law "that a delay on account of obstructions to the running of trains must be by persons other than the employees or servants, in order to excuse it for such delay."And wherein it was held "that a company would be held responsible for delay in transportation of freight where it was caused by its servants suddenly and wrongfully refusing to work."This declaration was made on the theory that the employees were still the agents of the company; but that is not now the correct rule.Strikers cease to be in the service of a railroad company or in any sense its employees or agents, for whose conduct it is responsible when they take part in a strike against it.Geismer v. Lake Shore Ry.,102 N.Y. 763, 7 N.E. 828, 55 Am. Rep. 837.But the case of Reed v. Railway,60 Mo. 207, is no authority against the position of appellant in this case.It was well said in that case, l. c. 205, "that the doctrine is now well established in this State that a common carrier by a special contract can limit his common-law liability, but he cannot exempt himself from the consequences of his negligence."The damages sought and recovered in this case was for the freezing of potatoes.The freezing was not necessarily the result of delay.It became the duty of the carrier if a delay arose by reason of the strike and the car of potatoes was stopped in transit to take and exercise ordinary care to prevent their freezing.In this case, the contract was an absolute undertaking, and there was no exception made in reference to any circumstances by which the defendant was surrounded.But in the case at bar, there was an express provision of exception in both of the shipments of stock, which exception exempted the company from liability for any loss occasioned by strikes or the stoppage of labor.

If the company was bound in the Reedcase, supra, then must the shipper be bound in the instant case.The answer in this case pleads a condition over which the defendant had no control the evidence tended to show an absolute impossibility for the defendant company to supply the places of strikers to keep up its equipment, and operate its railroad.It has been judicially determined by the courts of the United States that the strike complained of was an unlawful conspiracy, extending throughout the limits of the United States, involving two million men, seven thousand and more of whom were employees of this defendant.This being true, this conspiracy which resulted directly in the stoppage and cessation of defendant's labor, impairing thereby the operation of its road, was certainly such an unforeseen event and one in which it had no participation and such an emergency as to make it a legal excuse for delay in furnishing cars.United States v. Railway Employees,283 F. 479.And this is further supported in case of In Re Grand Jury,62 F. 840.This position is also supported by the case of Gage v. Arkansas Central Ry.,254 S.W. 665, wherein, in making application of the rule that, "Where an unusual contingency has arisen, which unexpectedly increases the business of a railroad, it will be excused for a delay in shipment," it was further said, "That where a railroad company was prevented in the handling of freight in a prompt and expeditious manner by unforeseen conditions, such as a strike, over which it had no control, and over which, in the nature of things, it could have no control, it will be excused from receiving freight for shipment."The duty to deliver within a reasonable time is a term engrafted by legal implication upon the promise of the carrier to deliver generally.In this respect, however, it stands upon the same ground with other bailees, and may excuse delay in the delivery of the goods by accident or misfortune, although not inevitable or produced by the Act of God.All that can be required of it in such an emergency is that he shall exercise due care and diligence to guard against the delay, and if it occur without his fault or negligence, he shall omit no reasonable efforts to secure the safety of the goods.Hutchison on Carriers, par. 330, page 265.However, a carrier may limit himself from responsibility almost without limit by an express or special agreement.There is no danger or risk for which he cannot avoid responsibility by a contract fairly and understandingly made.Hutchison on Carriers, par. 248, page 200.So, it has been held that weather conditions may justify an embargo on the shipment of live stock, and where the shipper has been notified of such embargo, even when he has his hogs in the pens ready for shipment, that the carrier will be relieved from any damage to promptly ship the hogs.Stewart v. Railway,222 S.W. 1030.It must be remembered in this case, that the strike complained of was nation-wide, known to every human being who read the newspapers.The plaintiffs in this case were chargeable with the knowledge of the strike, and the conditions that it was creating.They knew of the...