Hurst v. St. Louis & San Francisco Railroad

GOODE, J. Plaintiff in three separate paragraphs in his petition declared on as many distinct causes of action. He is a dealer in apples at Washburn, Missouri, buying and shipping them to Texas and other points, and has been engaged in that business for twenty years. He is accustomed to make shipments to Texas over defendant’s railroad, usually loading at Washburn and Exeter. Plaintiff’s first cause of action is founded on damage done to 170 barrels of apples shipped over defendant’s line from Exeter, Missouri, on October 28, 1902. In the bill of lading these apples were consigned to plaintiff at Yoakum, Texas, with a direction to notify the Southern Commission Company. After the apples had been shipped, plaintiff directed that the shipment be diverted from Yoakum, the original destination, to San Antonio. This change of destination was due to a dispute Avhich arose betAveen plaintiff and the Southern Commission Company to whom the apples had been sold. The fruit arrived at San Antonio on November 11th and plaintiff was there in person at the time. On examination it turned out that the apples had been damaged by “heating and scalding,” and it is for this damage plaintiff seeks to recover in the first paragraph of his petition. The fruit had been shipped in a refrigerator car and the alleged cause of the injury is that the ventilators of the car were closed during transit, pre — 30 — venting the entrance of fresh air and overheating the interior. The cause of action is thus stated: “Plaintiff further states that during the transit of said apples from Exeter, Missouri, to- Yoakum, Texas, defendant, at the request of plaintiff, diverted said shipment of apples from Yoakum to San Antonio, Texas.' Plaintiff further states that said shipment of apples was loaded into and shipped from Exeter, Missouri, in a refrigerator car, and that during transit the vents of said car were carelessly and negligently closed and permitted to remain closed; that by reason of the vents of said car being closed and remaining closed during transit, said apples were heated and scalded and damaged by reason thereof to plaintiff’s damage in the sum of two hundred and seventy-two dollars and twenty cents for which plaintiff demanded payment by defendant on the 14th day of May 1903. Wherefore plaintiff prays judgment for said sum of $272.20 together with interest thereon at the legal rate from said 15th day of May, 1903.” The second cause of action relates to 167 barrels of apples shipped over the defendant’s railroad from Washburn, Missouri, consigned to plaintiff at Waco, Texas, with a direction to notify C. H. Cox & Co. While these apples were in transit to Waco, their original destination, and the next day after they had been shipped from Washburn, plaintiff directed that the shipment be diverted from Waco to San Angelo, in the same State, and the agent at Washburn agreed to make the diversion. After the apples reached Waco they were left on a sidetrack for a few days instead of being taken at once to San Angelo, and as the weather was warm, they became overheated and were damaged; whereas plaintiff testified that if they had been carried promptly to the new destination, this would not have occurred. The case stated against defendant is as follows: “Plaintiff further states that the defendant on the 26th day of October, 1902, contracted and agreed with — 31 — plaintiff, for a valuable consideration, to transport and carry for plaintiff from Washburn, Missouri, to Waco, Texas, . . . barrels of apples, which said apples plaintiff, on the 26th day of October, 1902, delivered to defendant in good condition on board of its cars at Exeter, Missouri. “Plaintiff further states that during the transit of said shipment of apples from Washburn, Missouri, to Waco, Texas, and on the 27th day of October, 1902, plaintiff ordered and directed defendant, as he had a right to do, and which order it was defendant’s duty to faithfully obey and observe, to divert said shipment from Waco, Texas, to San Angelo, Texas. Plaintiff further states that defendant carelessly and negligently failed to divert said shipment of apples from Waco to San Angelo, Texas, as ordered and directed, but carelessly and negligently permitted said shipment of apples to stand until the 11th day of November, 1902, in the railroad yards at Waco, Texas, in the refrigerator car into which said apples had been loaded at Wash-burn, Missouri. Plaintiff further states that if said shipment of apples had been promptly diverted, as ordered and directed by plaintiff, said shipment would have reached San Angelo in due course of shipment on or about the . . . day of October, 1902. Plaintiff further states that by reason of the negligence and carelessness of defendant in failing to' divert said shipment as ordered and directed, and in carelessly and negligently permitting said apples to remain in the refrigerator car into which they had been loaded while standing-in the railroad yards at Waco, said apples became heated and scalded; by reason thereof rotted in said car to plaintiff’s damage in the sum of two' hundred and eighty-six dollars and forty-five cents, for which plaintiff demanded payment of defendant on the 14th day of May, 1903. Wherefore plaintiff prays judgment for $286.45, together with interest thereon at the legal rate from said 14th day of May, 1903.” — 32 — Plaintiff testified tiiat it was the custom of defendant’s agents at Washburn and Exeter to change the destination of cargoes of apples shipped by him, and that they had done this many times in the course of his dealings with defendant company; that there is a common rate to different points of shipment in Texas; that is to say, the same rate is charged from Washburn or Exeter to Yoakum, San Antonio and various other Texas points; that hence no increased expense was entailed by diverting a car from its original destination, and plaintiff was entitled to the diversion, on the agreement made with the agent at either Exeter or Washburn, in consideration of the rate originally agreed to be paid. The third cause of action relates to damage done to several' hundred barrels of apples which plaintiff had deposited on defendant’s right of way at Washburn, with the purpose of loading them on cars and shipping them over the railroad.' These apples, with defendant’s consent, were put on a portion of the right of way known as the “commercial track” or “home track” near defendant’s depot at Washburn. While they were there and some of them being loaded on a car, defendant’s servants unloaded a carload of coal near them, and the dust from the coal sifted through the cracks of the barrels and injured the apples. Plaintiff testified that he notified the foreman of the men at work unloading the coal, to stop until the apples were loaded, telling him the coal dust would do injury; but no attention was paid to his request. For the defendant the evidence goes to show that it was necessary to unload the coal there in order to operate defendant’s water tank from Avhich its engines took water. The cause of action stated regarding this matter is that while plaintiff’s apples were on the right of way waiting to be loaded, defendant, by its agents and servants, carelessly unloaded a carload of coal and large quantities of coal dust sifted through the cracks of the barrels, causing the apples to be blackened and injured; whereby they were damaged — 33 — in the sum of $130, for which plaintiff prayed judgment. 1. We do not agree with defendant’s counsel that plaintiff’s evidence shows he contracted with the agent of the San Antonio & Arkansas Pass Railroad Company, instead of defendant’s agent, to have the car hauled from Yoakum to San Antonio. The argument in this connection is that, as far as appears, the. apples were in good condition when they got to Yoakum and whatever damage they sustained may have occurred between that point and San Antonio, the final destination; and, hence, if they were in charge of the San Antonio & Arkansas Pass Railroad Company from Yoakum to San Antonio, and defendant company had fully performed its contract for carriage, by hauling them safely to Yoakum and there turning them over, on plaintiff’s order, to another company, defendant was not responsible for any subsequent damage. Suffice to say that though plaintiff admitted he had conferred at Waco with an agent of the San Antonio & Arkansas Pass Railroad Company about having the apples taken to San Antonio, he swore further that he made the arrangement with' defendant’s agent at Exeter and took the matter up with the agent of the other railroad company to have him ascertain if the car had been diverted to his road and if it had been, to expedite its transit from Yoakum to San Antonio pursuant to the contract between plaintiff and defendant. If plaintiff’s version of the matter was true defendant company remained under contract with plaintiff for the proper care of the apples until they reached their final destination, though, in completing the haul, they were handled by another company. Plaintiff’s testimony goes to show that the custom between him and defendant was to divert shipments from their original destination, whenever circumstances arose after a car had left the starting point, which made a diversion desirable; also that defendant continued the — 34 — carriage to the new destination. Plaintiff therefore contends that as such contracts had been made by defendant’s agent theretofore, and had been recognized as valid and executed by defendant, plaintiff had a right to rely on its performance of such a contract if one was made in the present case; and we think there was evidence to support a finding that it was made, and is governed by Missouri law, because entered into at Exeter in this State. 2. In instructing on the first cause of action the court told the jury, in substance, that if defendant, at plaintiff’s request, diverted the car of apples from Yoakum to San Antonio, and the apples left Exeter in good condition, but when they arrived at San Antonio were heated, scalded and injured, the issues should be found for plaintiff, unless defendant had proved by the evidence that the apples were not injured by want of “care, skill and diligence on the part of defendant, its agents and servants, or any railroad to which defendant delivered said car of apples.” At the instance of defendant the court instructed that unless the jury believed the ventilators of the car were carelessly and negligently closed, or permitted to remains closed, during the transit of the car from Exeter to Yoakum, the verdict must be for defendant on the first count of the petition. That instruction and the one given at the instance of plaintiff, conflict. The instruction for plaintiff made defendant responsible if the apples were damaged while in transit between Exeter and San Antonio; whereas the one for defendant made it responsible only in case the damage occurred between Exeter and Yoakum, the original destination. The first instruction was correct in adopting the theory that defendant was responsible for damage caused by the negligent act averred in the petition, if done anywhere on the trip to San Antonio, provided.it was found that plaintiff contracted with defendant’s agent to continue the carriage to San Antonio, and the contract was according to the — 35 — course of business between plaintiff and defendant. Such agreement was simply an extension of tbe original contract, and defendant stood responsible for negligent damage to tbe fruit by its own employees or tbe employees of any connecting carrier it made use of to complete its contract. [R. S. 1899, sec. 5222.] But if the contract for carriage from .Yoakum to San Antonio was made with tbe San Antonio & Arkansas Pass Railroad Company, as might be inferred from tbe evidence, then defendant was only liable if tbe apples were injured by tbe negligence alleged while in its charge. As to tbe immediate point, plaintiff’s instruction was correct. Defendant’s was incorrect, in that it did not make defendant’s non-liability between Yoakum and San Antonio depend on a finding that it bad not agreed to carry tbe apples between those points. 3. Tbe first, and second instructions for plaintiff omitted to require tbe jury to find, as one condition of a verdict for him, that tbe alleged damage counted on in tbe first and second paragraphs of tbe petition, was caused by tbe acts of negligence stated in tbe respective paragraphs; in tbe first, closing tbe ventilators of tbe car and thereby overheating tbe apples in it; in tbe second ; detaining tbe car on a track at Waco with tbe like result. If plaintiff wishes to avail himself of negligent damage to tbe Waco shipment, not only while it was on -the track at Waco, but while in transit also, be should amend bis petition. 4. Error was committed in imposing tbe burden of proof on defendant in regard to tbe negligence alleged, and bolding it responsible unless it established that tbe damage was not due to' its fault or tbe fault of some connecting carrier. This proposition is contested by plaintiff’s counsel on tbe ' theory that in an action against a carrier for damage to freight, it is sufficient to allege and prove tbe freight was delivered to him in good condition, and when redelivered to tbe owner or consignee at destination, was damaged; whereupon tbe — 36 — burden shifts to the carrier to show, when there is no valid contract limiting its common-law liability, that the damage was due to the act of God or the public enemy (Davis v. Railroad, 89 Mo. 340); or, if there was a limiting contract, that the damage was due to a cause for which, according to the terms of the contract, the carrier was not liable (Witting v. Railroad, 101 Mo. 631, 636, 14 S. W. 743). In the present instance the shipment was under a special contract by which, in consideration of a reduced rate of freight, defendant’s liability for damage to the property was limited to damage resulting from negligence. The decisions in this State maintain the doctrine that, where a bill of lading contains a valid exception to a carrier’s common-law liability, and an action is brought for damage to freight while in transit, and the petition charges delivery of the freight to the carrier in sound condition and redelivery in a damaged condition at destination, it devolves on the carrier, in defense, to show that the damage was due to á cause within the exception. Thereupon the plaintiff may, if he can, show that though the damage was due to an excepted cause, the carrier’s negligence contributed to it. For instance, if there is a valid exception against liability for damage to freight by fire while in transit, it would devolve on the carrier to show, in defense of an action for loss of the freight, that the loss was due to fire; and then the plaintiff might show the carrier was still liable because the fire was caused by its negligence. [Witting v. Railroad, 101 Mo. 631; 28 Mo. App. 103]. We need not determine at present, whether that rule relating to liability for losses of freight from specific causes specially exempted in the bill of lading, would obtain when, instead of some special exceptions, a general exception in favor of the carrier for any loss not occasioned by its negligence, is invoked. In our judgment the decision of the present case turns on the rule of law imposing on the party who charges negligence the burden of proving his averment, and not on the rule reg — 37 — ulating the burden of proof in actions against carriers on their common-law obligation. It is plain that neither the first nor second paragraph of plaintiffs petition, can be interpreted reasonably, as stating a case resting merely on the delivery of the fruit in sound condition to defendant and its return to plaintiff in a damaged condition. The very gist of both paragraphs is, that the fruit was damaged by certain specified negligent acts of defendant’s servants. Hence, it is impossible to accord to plaintiff the benefit of the rule invoked in his behalf, and hold that he made a prima facie case by proving no more than that the fruit was sound when defendant received it and damaged when it reached destination. Plaintiff selected the ground on which he would rest his case and must be bound by the rules of law applicable to the case stated; which is unquestionably one for negligence. No doubt he chose to rely on negligence from a doubt whether, under the contract, defendant’s common-law liability remained unchanged and governed the shipment, not only to Yoakum, but from there to San Antonio. It was incumbent on him to prove that the loss complained of was due to defendant’s negligence, or that of some connecting carrier for whose negligence defendant was responsible. This proposition lies far beyond dispute and has been declared to be the law in identical cases. [Stanard Milling Co. v. White Lime Co., 122 Mo. 275, 26 S. W. 704; Witting v. Railroad, 101 Mo. 631; Farr v. Lead Co., 100 Mo. App. 574, 75 S. W. 183; Hadley v. Orchard, 77 Mo. App. 141; Galm v. Railroad, 87 S. W. 1015.] In some States the carrier must show affirmatively that the loss was not due to its neglect. We are cited to Doan v. Railroad, 38 Mo. App. 408, as supporting the contention that plaintiff’s petition should be regarded as counting on defendant’s common-law liability. In that case there was no contract, as there is in this one, limiting the railroad company’s liability to damages resulting from its negligence; and, besides, the petition did not, as plaintiff’s does, aver specific care — 38 — less acts. Such acts are the gravamen of plaintiff’s complaint. What has been said above in relation to the burden of proof on the first cause of action, is applicable to the second. That, too, is stated in language which shows the case is one for negligence, and the burden was on plaintiff to establish negligence, as the cause of the damage^ 5. Though we think the court erred in imposing the burden of proof on defendant, we do not concede Lhe position that plaintiff failed to make a prima facie case. It is true that he proved nothing more as to the first cause of action than that the apples were sound when loaded at Exeter and unsound when unloaded at San Antonio, and that the ventilators were open when the car left Exeter and closed when it reached San Antonio. But as apples are dead freight, and cannot, like cattle or other animals, injure themselves, we think those facts constituted a prima facie case. Plaintiff was not bound to prove positively that the ventilators were closed by defendant’s employees and not by. some outside meddler. Cash v. Railroad, 81 Mo. App. 109; Hance v. Express Co., 48 Mo. App. 179.] If the contract for carriage from Yoakum to San Antonio was with the San Antonio & Arkansas Pass Railroad Company and not with defendant, what we have just said would not apply. In that event defendant completed its contract and its responsibility ended at Yoakum; and as there was no proof that the fruit was already damaged, the presumption, in the absence of evidence on the issue, would be that defendant delivered it in good condition to the last carrier and the damage occurred on its line. [Crouch v. Railroad, 42 Mo. App. 248; Flynn v. Railroad, 43 Mo. App. 424, 439.] If defendant’s contract was not extended beyond the original destination, plaintiff, in order to make a prima facie case, must introduce evidence that the fruit was injured when it arrived there. The facts in proof made a case on the second count, too. — 39 — 6. In connection with the second shipment, it is insisted by defendant that plaintiff was bound to prove he exerted himself to dispose of the apples at Waco, and thereby diminish the loss which might result from their being detained, instead of being sent forward promptly to San Angelo. In many instances where one party has broken a contract, it is incumbent on the other party to do what lies in his power to diminish the loss likely to flow from the breach. But that rule has no application to the facts of the present case. Plaintiff had the right to rely on the agreement he had made with defendant’s agent that the apples should be carried from Waco to San Angelo, and to expect prompt performance. It would be unjust to hold that it was his duty, if he saw the car standing on the track at Waco, to take it from defendant’s custody while the carriage was still unfinished, and dispose of the apples in order to avert loss. He was not bound to go to that trouble to protect defendant against loss from its own breach of contract. 7. Testimony was given to support plaintiff’s third cause of action, and we see no reason to condemn any of the rulings relating to it. There can be no doubt that the coal dust damaged the fruit. Plaintiff piled his ap.ples on the right of way by direction of defendant’s agent and according to the custom of business at the station. He swore he notified the foreman of the men who were unloading the coal,to forbear until the apples were put in cars, as the coal dust would injure them; but they ignored this request. It is a reasonable conclusion that they could have suspended work awhile without detriment to defendant’s interests, and if this is true, they did wrong. The judgment is reversed and the cause remanded with directions to let the verdict on the third count of the petition stand; to retry the issues arising on the other two counts and at the conclusion of the trial enter judgment on all the counts in accordance with the finding of the jury. All concur.