Wertheimer, Swartz Shoe Company v. The Missouri Pacific Railway Company
| Decision Date | 22 March 1910 |
| Parties | WERTHEIMER, SWARTZ SHOE COMPANY, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Robert T. Railey and James F. Green for appellant.
(1) The action of the court in sustaining a motion for a new trial is subject to review on appeal. Millar v. Car Co., 130 Mo. 517; Candee v. Railroad Co., 130 Mo. 154; Taylor v. Architectural Co., 47 Mo.App. 257; Kuenzel v. Nicholson, 73 Mo.App. 14; Valois v Warner, 1 Mo. 730. (2) Upon the uncontradicted testimony, the judgment should have been for the defendant and the court therefore erred in setting aside the verdict in favor of defendant. Merritt v. Railroad, 122 S.W. 322; Moffatt v. Railroad, 113 Mo.App. 544; Mfg. Co. v. Railroad, 117 Mo.App. 453; Lightfoot v. Railroad, 126 Mo.App. 532; Cattle Co. v. Railroad, 135 F. Rep. 135; Rogers v. Railroad, 75 Kansas 222; Grier v. Railroad, 108 Mo.App. 565; Elam v. Railroad, 110 S.W. 602; Hay Co. v. Railroad, 113 Mo.App. 651; Brewing Assn. v. Talbot, 141 Mo. 686.
David Goldsmith and Karl M. Vetsburg for respondent.
(1) The plaintiff's motion for a new trial should be sustained because the verdict of the jury on the third count is inconsistent with that under the first count. Chicago Co. v. Stepp, 88 N.E. 343; Phillips v. McDonald, 2 Mill Const. 269; Raymond v. Kiseberg, 84 Wis. 302, 19 L.R.A. 643; Everroad v. Gabbert, 83 Ind. 489; Crawford v. Stock Yards, 215 Mo. 394; Chlanda v. Transit Co., 213 Mo. 262. (2) The court erred in its rulings on the instructions offered by the plaintiff with respect to the third count and in the instructions given by it of its own motion under that count. Plaintiff's motion for a new trial should therefore be sustained. Warehouse Co. v. Railroad, 124 Mo.App. 545; Merrett v. Farle, 29 N.Y. 115; Steamboat Co. v. Tierrs, 24 N.J. L. 697. (3) Plaintiff's motion for a new trial should be sustained because the court erred in admitting evidence as to the conduct of other persons having places of business in the west bottoms. Grier v. Railroad, 108 Mo.App. 574; Koons v. Railroad, 65 Mo. 597; Kelley v. Parker-Washington Co., 107 Mo.App. 495; Jenkins v. Hooper, 13 Utah 103; Hill v. Prov. S. Co., 125 Mass. 292; East Tenn. v. Kane, 92 Ga. 187; Railroad v. Clark, 108 Ill. 113; Calf v. Railroad, 87 Wis. 276; Gardner v. Friederich, 25 A.D. 528, affirmed 163 N.Y. 568; Calamet v. Crentz, 80 Ill.App. 96; Hill v. Windsor, 118 Mass. 259; Grand T. v. Richardson, 91 U.S. 469. (4) Plaintiff's motion for a new trial should be sustained because the verdict is against the weight of the evidence. Under the testimony, the verdict on both counts should have been for plaintiff. Memorandum of Trial Judge, rec. p. 220; Railroad v. Madden, 103 S.W. 1193; Fentiman v. Railroad, 44 Tex.Cir. 462; Pinkerton v. Railway, 117 Mo.App. 293.
Plaintiff filed this action to recover for the loss of two shipments of boots and shoes, the first consisting of five cases delivered on May 25, 1903, to defendant for carriage from St. Louis to Chapman, Kansas, there to be turned over to Carroll Brothers, and alleging the total loss of said goods. There is a second count with which we are not concerned, as the cause of action was dismissed. A third count alleged delivery to defendant on May 26, 1903, of four cases of boots and shoes, to be carried from St. Louis to Kansas City and delivered to John Carroll. It was averred defendant failed to deliver these goods, to plaintiff's damage in the sum of $ 707.43. To both the first and third causes of action defendant pleaded the goods were destroyed by a sudden and unprecedented flood of water from the Kaw and Missouri rivers, the first shipment having been turned over to the Union Pacific Railroad by defendant before its destruction and the second shipment being still in defendant's hands, because the flood occurred before defendant had an opportunity to deliver them to the consignee. Both consignments of goods were in the railroad yards at the Union Station in Kansas City, Missouri, when they were suddenly submerged by a flood of such unprecedented magnitude, that plaintiff concedes it was an act of God for the consequence of which defendant is not liable. But plaintiff contends the destruction of the property was not due entirely to the flood but is partially to be attributed to the negligence of defendant in omitting to put the property in a place of safety, though it is said there was ample time to do this while the flood was swelling and before it reached the property. The court below left it to the jury to say whether the loss was due exclusively to the sudden rise of the waters, or defendant had notice of their rising and the attendant danger in time to have removed the property to where it would be safe. The jury returned a verdict for plaintiff on the first count of the petition, assessing his damages at $ 90.60, and a verdict for defendant on the third count. The court set this verdict aside on plaintiff's motion and granted a new trial on the ground the finding on the third count was inconsistent with the finding on the first count. In connection with its order sustaining the motion for new trial, the court filed a memorandum saying proper rulings had been made on the requests for instructions and no substantial error to the prejudice of plaintiff had been committed in admitting evidence; that substantial justice had not been done, the verdict on the two counts being inconsistent and the diverse results reached by the jury having no warrant in the slight difference in the evidence bearing on the respective counts; saying further, that while the court was not bound to be satisfied with the verdict of the jury, in order to sustain it, the due administration of justice would best be advanced in the present case by the exercise of reasonable discretion to grant a new trial. This appeal is from the order setting aside the verdict and allowing a new trial; and defendant contends against the adequacy of the reason assigned by the court for its ruling and in favor of the proposition that the evidence showed no cause for a verdict against the defendant on either count of the petition.
Back of the inquiry regarding the sufficiency of the reason for which the verdict was set aside, lies the question of whether a verdict should have been ordered for defendant on both counts, as it contends; and after an attentive study of the record we are convinced this contention is just. It would seem to be superfluous to rehearse the facts of the flood which caused the loss, for they have been set forth in several opinions upon cases the circumstances of which did not differ from those before us. In the following actions instituted by the owners of property destroyed in the flood to recover damages from railroad carriers, the fact supposed to show negligence was failure to remove the property beyond the reach of the waters after warnings from the Weather Office in Kansas City and newspaper reports that danger was to be apprehended by the overflow of the Missouri River bottom where the railroad yards were; the very omission of duty supposed to lay defendant liable in the present case Lamar Mfg. Co. v. Railroad, 131 Mo.App. 115, 110 S.W. 601; Id., 117 Mo.App. 453, 93 S.W. 851; Lightfoot v. Railroad, 126 Mo.App. 532, 104 S.W. 482; Moffitt Com. Co. v. Railroad, 113 Mo.App. 544, 88 S.W. 117; Merritt Creamery Co. v. Railroad, 122 S.W. 322; Empire State Cattle Co. v. Railroad, 135 F. 135, 210 U.S. 1. In those cases the respective defendants had read bulletins of the Weather Office and newspaper reports of rising waters which threatened to inundate the bottom and the railroad tracks. This rise had been...
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