Missouri, Kansas & Texas Railway Co. v. L. A. Watkins Merchandise Co. , 76 Kan. 813 ( 1907 )

The opinion of the court was delivered by

Benson, J.:

The defendant in error Was the owner of a tank-car used in transporting tar. The Missouri, Kansas & Texas Railway Company received this car from the Missouri Pacific Railway Company'at Council Grove, took it to Emporia, and placed it on the east transfer track of the connecting line by which its railway in that city is connected with that of the Atchison, Topeka & Santa Fe Railway Company. In accordance with the course of business between these companies, cars for the Santa Fe company are switched to the east track and cars for the Missouri, Kansas & Texas company are switched to the west track of their connecting transfer line. This transfer line consists of these two tracks.

This tank-car was taken by the Santa Fe company from' the east connecting track to the Emporia gasworks, situated about one-half of a mile south on its. line, and there filled with coal-tar, and then switched by the Santa Fe company back to the west connecting track for the Missouri, Kansas & Texas company. For this service the last-named company paid the Santa. Fe company $2, which was added to the freight bill and collected with its charges from the plaintiff by the Missouri, Kansas & Texas company. After the car was so filled and placed on the west connecting track a bill of lading was issued to the gas company, which it attached to a draft for the price .and forwarded it for collection through a local bank. While standing thus upon the west connecting track, about six hours after it was left there, and before being moved by the Missouri, Kansas & Texas company, the tar leaked out and was lost. No leak was discovered, however, when the car was switched to this track. The loss became known to the Missouri, Kansas & Texas company almost immediately after it occurred.

The car was an old one, and the evidence tends to show that soon after it was left standing on the connecting track it was shoved along by the Santa Fe company in switching other cars, causing a “bumping” of the Cars on such track. The bill of lading contained the following clause:

“It is understood, as a part of the conditions under which said packages are received, that neither this railway company nor other carrier shall be liable for leakage or fermenting of any kind of liquids, arising' from expansion, bursting of packages, or other unavoidable causes.”

The court directed a .verdict for the plaintiff, upon which judgment was rendered.

The plaintiff alleged negligence in moving and handling the car, whereby it became injured, theréby causing the loss. Whether it was' so injured, or whether the loss was caused by the defective condition of the car or tank furnished by the plaintiff, or by “expansion” or “bursting Of packages” (in this case the tank), were questions of fact to be determined by the jury upon all the evidence, under proper instructions. There was no direct evidence that the car was injured in switching. Nor was there any direct evidence of expansion or other cause of leakage. The cause of the loss was -a matter of inference or deduction from the facts proved, and such inference or deduction was for the jury.

“Whenever the testimony has reached such a point that it must be weighed and conclusions deduced therefrom the jury alone must make the deductions in the first instance, and not the court.” (Avery v. Railroad Co., 73 Kan. 563, 564, 85 Pac. 600.)

For the same reason the demurrer to the evidence was properly overruled.

There was no error in refusing to enter judgment on the findings. They were immaterial in view of the instruction to find for the plaintiff.

The judgment is reversed, and a new trial ordered.

Johnston, C. J., Burch, Mason, Smith, Porter, JJ., concurring. Graves, J., not sitting.