Botts v. Wabash Railroad , 106 Mo. App. 397 ( 1904 )

GOODE, J.

(after stating the facts). — The instruction given against the objection of the plaintiff that if the jury found the issues for the plaintiff they would allow him only $11.10, the amount he had paid for feeding and watering his stock, on account of the delay in transit, was based on the following paragraph of the bill of lading:

* ‘ The party of the second part, in consideration of the rate named in this contract, further agrees' to water and feed said stock at his or their own risk and expense, while the same is in the cars of said first party or connecting lines; and, in the event of any unusual delay or detention of said live stock while on said trip, from any cause whatever, the party of the second part agrees to accept, as full compensation for all loss or damage sustained in consequence of such delay, the amount actually expended by him or them in the purchase of food and water for the stock aforesaid. ’ ’

As this is a negligence case purely, and the instructions made a verdict for the plaintiff dependent on a finding by the jury that' the delay in the transportation of the stock was due to the defendant’s negligence, it was manifest error to limit the amount of the damages plaintiff might recover to the expense of feeding and watering the stock entailed by the delay. The railroad company could not contract against liability for damages caused by its own negligence. Ball v. Railroad, 83 Mo. 574.

Propositions are discussed in the briefs which we deem it unnecessary to notice for the reason that they relate to the right of the railroad company to limit its common law liability as a common carrier. The petition did not seek to hold the defendant for damages on its common law liability, but for positive acts of negligence. Its counsel contend there is no proof to show the delays were caused by the negligence of the defendant’s employees. This position is untenable. There was, as stated above, testimony that the usual time from Mexico to Chicago was twenty-eight hours, or less, and that from various delays due to negligent and inefficient management, this, shipment did not reach Chicago until more than twice that time had elapsed. This testimony presented a question of fact for the jury’s decision.

As to the complaint of the act of Judge Johnson setting aside the submission of the motion for new trial to Judge Hockaday and ruling on it himself, we refer to the case of Hendrix v. Wabash Railroad Co., — Mo. App. —, wherein the same question is treated and decided.

The order for new trial is affirmed and the cause remanded.

Blamd, P. J., and Reyburn, J., concur.