Ford v. Wabash Railway Co.

ON MOTION FOR REHEARING. 1. The motion for rehearing assigns several errors in the opinion. It is said that "the record distinctly shows that the defendant's employees did not and could not see the water coming until it began flowing around their feet and it came in a veritable wall about four inches deep; . . . that they immediately sought to get something on which to elevate the baggage and within four or five minutes they had allDue the baggage on trucks borrowed from the TerminalDiligence. Railroad Association. We cannot conceive how it can be said that defendant's employees ``impotently folded their hands and did nothing' to prevent the damage; nor how such evidence can raise any question of negligence whatever."

In appellant's statement quoted in the opinion it is said:

"Within a few minutes after the rain started the water came flooding down across the tracks and across the baggage platform and in about fifteen minutes rose to a depth of fourteen or fifteen inches on the platform occupied by the St. Louis Transfer Company where the plaintiff's baggage was at that time. The rain lasted for about an hour and the first intimation that any employees of the St. Louis Transfer Company had that there was any danger from the water was when it came flooding across the platform occupied by them. They thereupon began to search for trucks or something else upon which they could place the trunks on their platform to get them out of the water."

The opinion continues: "But concede the claim they could get no trucks nor anything on which to put the trunks. Could they not have removed the baggage to a place of safety? Or could they not have piled the trunks one on another and so have saved four of them? . . . For all the evidence shows the appellant's employees impotently folded their hands and did nothing."

Concerning these observations it is said in the motion for rehearing: "The whole premises was flooded to a depth of fourteen or fifteen inches in less than five minutes time. There was no safer place to be found and no such evidence can be found in the record."

In appellant's statement it is said that in about fifteen minutes the water rose to a depth of about fourteen or fifteen inches on the platform which was on the first floor of the Union Station. There was evidence tending to prove that appellant was unable to borrow trucks on which to place the baggage. The Union Station is a large building consisting of several stories. The Terminal Railroad Association hoisted mail sacks and baggage to the first floor and after some time loaned trucks to the appellant. Might not the appellant, in the exercise of reasonable diligence, have hoisted plaintiff's baggage to the second floor, or piled it up until the flood abated? The evidence shows it did nothing. According to the authorities cited in the opinion, "The carrier is bound to do his utmost to protect the goods committed to his charge from loss or damage, and if he fails in this regard he becomes liable from the nature of his contract." Appellant did not, as a matter of law, show it had exercised due diligence when it offered evidence tending to show that it could not secure trucks.

2. Putting the foregoing considerations aside, it must be conceded that the defense relied on the suddenness and volume of the flood and the inability of appellant's employees to get trucks or something else upon which they could have placed the trunks, which were clearly questions of fact. The court submitted these issues to the jury under appropriate instructions and the verdict, having received the approval of the learned trial court, is conclusive.

The evidence on this feature of the case is oral, as we have said, and presented questions of fact solely for the jury. The evidence for both parties shows the Transfer Company had taken charge of the trunks, had them in its possession and had been paid its charges to deliver them at plaintiff's residence, and that the trunks and their contents became water-soaked while in appellant's possession. Plaintiff made a clear prima-facie case. Appellant undertook to prove by parol testimony that the loss was caused by an unusual flood. This presented an issue of fact with the burden of proof on the appellant. Plaintiff was entitled to have the jury pass upon the weight, credibility and sufficiency of the appellant's evidence, although she offered nothing to contradict it. "Should a verdict be returned against the evidence given in such circumstances, it might furnish a matter for the corrective action of the trial court in a proper case; but not the exercise of the revisory power of an appellate court reviewing the questions of law only." [Schroeder v. C. A. Ry. Co., 108 Mo. 326, 18 S.W. 1094, and Seehorn v. Bank, 148 Mo. 265, 29 S.W. 886.] "Ordinarily, where the plaintiff produced parol evidence to support his action, the issue of fact should be submitted to the jury. The evidence may be all one way, yet it is for the jury to say whether they believe the witnesses or not. The court has no right to tell the jury they must believe the witnesses." [Dalton v. Poplar Bluff, 173 Mo. 47, 72 S.W. 1068.] "Under our decisions it is within the exclusive province of the jury to pass upon the credibility of the witnesses, and it may refuse to believe any witness or witnesses." [Anderson v. K.C. Ry. Co., 290 Mo. 8, 233 S.W. 203.] See also 38 Cyc. 1516 and 1518.

In Gannon v. Gas Co., 145 Mo. 502, cited in the opinion, syllabi 4 and 5 read:

"4. It is not the province of the trial court, after plaintiff has thus made out her prima-facie case, to sustain an instruction to the jury to find for the defendant, offered at the close of all the testimony, on the ground that defendant's proof is undisputed and unimpeached and is sufficient to overcome the prima-facie case which the conceded and admitted facts make for plaintiff. Nor can this court hold that such an instruction under such circumstances should have been given, after a verdict for plaintiff which has been sustained by the trial court, without assuming the prerogatives which under our Constitution and laws belong to the jury.

"5. The plaintiff is entitled to have the jury determine the credibility of the testimony offered, even though he offer nothing to contradict that presented by defendant. Nor can the court assume as a matter of law that the testimony is true, satisfactory or convincing to the jury, simply because no one by words contradicts what has been uttered."

These rulings are affirmed in St. Louis Union Trust Co. v. Hill, 283 Mo. 282, 223 S.W. 434, and State ex rel. v. Trimble,

307 Mo. 551, 271 S.W. 43, and dissenting opinion of ALLEN, P.J., in the instant case in 266 S.W. 1037.

3. The motion charges error in Instruction 1, in that it "attempts to cover the whole case and direct a verdict, yet it wholly fails to require the jury to find that appellant had the trunks in its possession for carriage; that any contractual relation existed between plaintiff and appellant; that any assignment of a cause of action was made by Mr. Ford to the plaintiff, or any one of several other elements essential to plaintiff's right to recover. And not one of those elements are supplied by any other instruction in the case."

Plaintiff's instructions are set out in the opinion. The sole complaint made of plaintiff's instructions in appellant's brief, except as to the allowance of interest, is: "The court erred in its instructions to the jury. The charge was incomplete and inconsistent."

Our Rule 15 provides that the appellant's brief "shall distinctly allege the errors committed by the trial court and shall contain in addition thereto . . . (2) a statement in numerical order of the points relied on, with citation of authorities thereunder and no reference will be permitted at the argument to errors not specified."

The only complaint made in appellant's brief as to the instructions is "that the charge was incomplete and inconsistent." Under this assignment, whatever it may mean, the complaint now made for the first time of plaintiff's Instruction 1, cannot be considered. Besides it was clearly proven and conceded that the trunks were received by the appellant and in its custody at the time of the flood. This is admitted in appellant's statement. It was also proved that J.W. Ford made a written assignment of his cause of action to Mrs. Ford. The assignment was identified by Mr. Ford when on the witness stand, but it was not further referred to in appellant's statement of the facts or brief.

4. Complaints are also made for the first time of plaintiff's Instructions 2 and 3. They were not made in appellant's brief and will therefore not be considered.

The motion for rehearing is overruled. Blair and Walker,JJ., concur; White, P.J., absent.