Davis v. Wabash Railroad , 122 Mo. App. 637 ( 1906 )

ELLISON, J.

Plaintiff instituted this action to recover damages for an alleged negligent delay in transporting a lot of beef cattle from Coatsville, Missouri, to Chicago-, Illinois. At the close of the evidence the trial court gave a peremptory instruction to find for the defendant. A verdict was rendered as directed and judgment entered accordingly.

The evidence in plaintiff’s behalf tended to show a shipment for the Chicago market and that the cattle should have arrived in that city in time for the market of the next day after shipment. But that through negligent delay they did not get in until the night of the next day and therefore had to he kept over and sold on the following day’s market. That the market of the latter day was less than the day before and there was also a shrinkage of the catle beyond what would naturally have occurred had there been no delay. There was ample evidence offered of delay from which negligence could be reasonably inferred. Long detentions, slow movements, overloaded train, etc., etc., were shown.

It appears that the defendant was the initial carrier and the cattle were transferred to a connecting line which took them to Chicago and that the negligence occurred on the latter line.

There was a written contract of shipment which contained a great many provisions of exemption; most of them with no application to plaintiff’s ground of complaint. But one of these provisions relates to a written notice which the shipper was required to give to defendant. It stipulates that “No claim for damages which may accrue to the party of the second part under this contract shall be allowed or paid by the party of, the first part” unless a written claim shall be made within ten days from a removal of the stock from the cars. The contract, continuing, provides, that it is also agreed that if any loss or damage occurs upon a connecting line, that such line should not be liable unless a claim is made in like manner and time to an officer of such line. Continuing, the contract further provides, that this defendant shall not be responsible for any damage or injury to, or loss, or detention of the stock after it shall have left defendant’s line, and that all responsibility of the defendant shall cease after the stock shall have been delivered to the connecting line. *

The provision thus interposed by defendant is broad — much broader than many of those appearing in like cases. It provides that a claim for damages of any kind must be made. It would cover a claim of the nature here sued for, if otherwise applicable to the case. And there is no doubt that a provision for notice, when it applies to the particular shipment which may be in controversy, will be upheld and enforced. [Brown v. Railroad, 18 Mo. App. 568, 577; McBeath v. Railroad, 20 Mo. App. 445; Smith v. Railroad, 112 Mo. App. 610; Freeman v. Railroad, 118 Mo. App. 526, 93 S. W. 302; Bellows v. Railroad, 118 Mo. App. 500, 94 S. W. 557.] In this case no notice was given and it was upon that ground that the peremptory instruction against the plaintiff was given.

But we do not think the provision is applicable. As already stated, the negligence occurred on the connecting line. It is manifest from the terms of the provision itself that notice to defendant is required only in those instances where the wrong to plaintiff occurred on its line. If the wrong occurred on a connecting line, as it did in this'case, then the provision does not require a notice to defendant, but to the connecting line. This is made still more apparent by the latter part of the stipulation which declares that the defendant shall in no case be responsible for damage after the stock has been given over to the connecting line; thus showing that defendant, by requiring notice of loss or damage, did not intend that it should be given to it unless the injury occurred on its line, for it stipulated that otherwise it would not be liable, in which case a notice would, of course, be useless. The intention of the parties being apparent from the face of the provision itself, that notice of a claim was not required in cases where the cause of such claim transpired on another line, the defendant cannot demand a notice in such instances.

Notwithstanding the contract provides that notice shall be given to the connecting line when such line injures the shipper, and that plaintiff has not done so, yet-that does not aid the defendant. Defendant has no right to claim the protection of a provision made for the benefit of another. Defendant’s liability in this case, notwithstanding the wrong was not done on its line, arises on the statute (section 5222, Revised Statutes 1899). By reason of accepting the cattle to be carried to Chicago and not contracting to carry only on its own line, it will be liable for damages occurring on the connecting line. [Marshall Grain Co. v. Railway, 176 Mo. 480; Western Sash Co. v. Railway, 177 Mo. 641, 645; Popham v. Barnard, 77 Mo. App. 629; Bank v. Railway, 72 Mo. App. 82; Marshall & Antles v. Railway, 74 Mo. App. 81.] In cases covered by the statute, the initial carrier cannot contract to relieve itself from the negligence of the connecting carrier.

There is a further provision in the contract of shipment that for any damage resulting from delay or detention in course of transportation from any cause whatever, the shipper agrees to accept as full compensation the amount expended by him in the purchase of food and water. This provision is invalid when the cause of delay is the negligence of the carrier. To allow it effective force would be to destroy the fundamental rule prohibiting carriers from contracting against negligence. [Griffin v. Railway, 115 Mo. App. 549; Botts v. Railway, 106 Mo. App. 897; Buffington & Lee v. Railway, 118 Mo. App. 476, 94 S. W. 991.]

Another provision of the contract is that the cattle are of the agreed valuation of $50 per head, it being also stipulated that in case of loss or injury the liability of the defendant should not exceed that amount per head. There were fifteen cattle in the shipment. At $50 per head, their contract value was $750. Such contract only limits the damage or loss on each animal. And though the shipper should sell the whole number for a sum as large or larger than the total contract value, that would not prevent him from recovering the loss on each animal, or the aggregate loss on the whole number, provided it did not exceed the amount limited in the contract. We considered a similar provision in Buffington & Lee v. Railway, 118 Mo. App. 476, 94 S. W. 991, where the reasons for this construction are stated.

We stated above that the trial court gave defendant’s peremptory instruction on the ground of no notice. That seems to be conceded in the briefs of counsel and it is the only ground upon which to place the instruction. We assume that to be true, since in no other respect was there any ground to challenge the sufficiency of plaintiff’s showing as making a prima facie case. So-, also, we have stated that the negligence was that of the connecting line. That seems to be conceded in the briefs-, and on that ground we have held a notice of damage not to be required by the contract On retrial plaintiff, of course, in endeavoring to make his case, should be confined to the loss or damage consequent upon negligence occurring on connecting lines.

There are suggestions in defendant’s brief that plaintiff’s objections to the notice clause in the contract were for certain specified reasons and that he should be confined to those reasons on appeal. But we find that among other reasons stated Avhy it was unnecessary to give the notice, was the one dwelt on herein, that the injury was occasioned on a connecting line. But there is no necessity for a discussion of such suggestion since plaintiff excepted to the peremptory instruction and set out that it was error in his motion for new trial.

The judgment is reversed and the cause is remanded.

All concur.