Letts v. Wabash Railroad

BROADDUS, P. J. (after stating the facts). — It was the duty of defendant under its contract of shipment to furnish a safe place for the unloading of plaintiff’s horses. [McCullough v. Railway, 34 Mo. App. 23; Cooke v. Railway, 57 Mo. App. 471; Kincaid v. Railway, 62 Mo. App. 365; Mason v. Railway, 25 Mo. App. 473; Tracy v. Railroad, 80 Mo. App. 381.] The principle that runs through all the cases is that it is [279] the duty of the carrier to provide for the safety of animals while being loaded and unloaded. But we understand the defendant does not controvert the proposition that it was its duty to provide a safe place for the unloading of plaintiff’s animals, but that it did perform that duty as it was not shown that the platform where they were unloaded was unsafe. As a matter of fact it is conceded by plaintiff that it was not of itself unsafe. As the animal in question was safely unloaded from the car upon the platform and thence to another platform on a level with the ground, and that the mare was injured while being led over a track adjoining, the defendant insists that the evidence did not sustain the allegation of the petition as to that matter and did not show negligence. The allegation of the petition is that the platform where defendant required plaintiff to unload his mare was a dangerous and unsafe place, — not that the platform was dangerous or unsafe but the place was such. And the allegation further is, that, the injury was caused by the foot of the mare being caught on the track adjoining the platform as she was being led away. If there was any obstacle at the platform which prevented the mare from being led away from it in safety , after she had been unloaded the place of unloading was unsafe. There- was but a few feet, the width of the track, from the platform to the spike that caused the injury. It seems to us that the immediate surroundings of the platform might with propriety be designated as the place of unloading. For instance had there been a deep ditch immediately in front of the platform the place for unloading would be unsafe notwithstanding the platform itself was a safe place. It seems that the trial court sustained the demurrer to plaintiff’s case on the grounds that plaintiff had not complied with the terms of the contract in giving notice of his loss. Such contracts are held to be reasonable and as such are enforced by the courts. [Bel [280] lows v. Railway, 118 Mo. App. 500; Smith v. Railway, 112 Mo. App. 610.] While plaintiff admits the validity of the contract as to snch notice he contends that under the ruling in Wright v. Railway, 118 Mo. App. 392, such notice was not required because the damage to the animal Avas received after she left the cars. The contract in that case provided that, no loss or damage to said animals should be alloAved unless a Avritten claim be made within ten days.. It was held that the contract meant such damage suffered by the animals before they left the cars. And so it Avas held in Leonard v. Railway, 57 Mo. App. 366. But this contract is materially different from the contracts construed in those two cases. The language here is, “that no claim for damages which may accrue to the party of the second part under this contract shall be allowed . . . unless a claim for such loss or damage shall be made in writing, verified by affidavit . . . and delivered to the general freight agent of the first part at his office in the city of St. Louis within ten days from the time said stock is removed from said cars, etc.” A similar contract was construed in Hamilton v. Railway, 80 Mo. App. 597, where the damages claimed was for shrinkage and decline in the market caused by delay in the shipment of certain sheep. It was held that the contract for notice included such damage. In this case the contract provides that no claim for damages which may accrue under the contract shall be allowed Avithout such notice. Notwithstanding the damage occurred after the mare had left the car, it accrued under the contract for transportation, which included a safe unloading. It appears that plaintiff failed to give any notice of his damage to the general freight agent at St. Louis as he was required to do by his contract. An attempt however was made to show that such notice was given to the general claim agent at St. Louis, by evidence that it had been mailed to him at that place, but plaintiff [281] farther introduced'said claim agent to show that he had received it, but he testified that he had not and that there was nothing in his office to show that it had been so received. Plaintiff would have been justified in resting on the prima-facie case he had made, that notice had been mailed, but this he. rebutted by the introduction of the evidence of the agent, there being no other evidence to the contrary except the bare presumption of delivery from the fact of mailing. But however that may be the notice was not directed to the general freight agent as the contract required and therefore unsatisfactory. And we cannot see that there was any waiver of such notice. The letter written by Smith to plaintiff in the month of July three months after the injury would not of itself constitute a waiver of notice, for several reasons. It was not shown that Smith had any authority to adjust the claim. And it is Avell settled laAV that such acts and declarations happening or made after the time prescribed cannot be shovra to establish a Avaiver of the condition of the contract. [Mensing v. Insurance Company, 36 Mo. App. 602; Maddox v. Insurance Co., 39 Mo. App. 198.] This rule Avas somewhat modified by the holding in Hamilton v. Railroad, supra, to the extent that such acts and declarations might be shown, if they had any tendency to prove an intention to waive the conditions. The letter itself is not in evidence, therefore, Ave are unable to determine Avhat it tended to prove. When the judgment of the court goes to the right of the plaintiff to recover, all the evidence that is material to the issue must be abstracted for the purpose of revieAV by the appellate court. [Moore v. Harmes, 123 Mo. App. 34; Deering v. Hannah, 93 Mo. App. 618. Plaintiff insists that under the facts and circumstances in evidence the notice ' was not required and could not have been given because plaintiff did not and [282] could not know the extent of the damage to his mare long after the expiration of ten days from the time of her injury. It is said in Harned v. Railway, 51 Mo. App. 482, that, where it takes time to ascertain the extent of damages sustained in such cases, beyond that fixed by the contract when notice shall be given, that a notice given within a reasonable time after such damage is ascertained is a sufficient compliance with the contract. [See, also, Richardson v. Railway, 62 Mo. App. 1.] Admitting that the facts bring the case within the rule that it was impossible for plaintiff to ascertain his damage within the time limited, yet his case is not bettered, because he failed to give such notice at any time. He should have exercised diligence and given the notice within a reasonable time at least. What has been said disposes of all the material points raised on the appeal. Cause affirmed. All concur.