
    W. S. NICHOLSON et al., Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY Appellant.
    Kansas City Court of Appeals,
    January 10, 1910.
    1. CARRIERS: Freight: Vehicles. It is the duty of a common carrier to furnish suitable vehicles for .the transportation of the freight shipped and it is responsible for losses occurring in consequence of defects in this regard.
    2. -: -: Defective Vehicles: Waiver. But where the shipper is afforded the opportunity to select the vehicle in which to transport his goods and he makes such selection with knowledge of its defects, and injury results therefrom, the carrier is not liable.
    Appeal from' Jackson Circuit Court. — Son. W. B: Teasdale, Judge.
    Reversed.
    
      W. F. Evans, Dana, Cowherd & Ingraham and A. E. Morse for appellant.
    (1) Plaintiffs having had notice that the corn was in a stock car and having failed to object at the time are estopped from objecting now. (2) The plaintiffs are hound by the bill of lading which provides that plaintiffs shall take the risk arising from the corn being loaded in a stock car. (3) Defendant having contracted to carry tbis car1 only to the end of its own line and baying stipulated that it would not be liable beyond that point, is liable only for damages proved to have occurred on its own line. (4) The instructions were so contradictory as to compel a reversal of the case. If the foregoing points are well taken the court should have given a peremptory instruction for the defendant at the conclusion of the case.
    
      Sherman & Fletcher for respondents.
    Plaintiffs bad no such notice that the corn in question was being shipped in such a manner as required a protest from them. While upholding the general principles of law as stated in Elliott on Railroads and Hutchinson on Carriers, the courts of this State have also laid down the law that mere knowledge on the part of the shipper of the unsuitableness of the equipment does not relieve the common carrier of its duty to furnish safe and suitable equipment. Sloan v. Railroad, 58 Mo. 220; Potts v. Railroad, 17 Mo. App. 394; Paddock v. Railroad, 60 Mo. App. 328; Mason v. Railroad, 25 Mo, App. 473; Jones v. Railroad, 115 Mo. App. 232.
   BROADDUS, P. J.

This is an action for damages, by the shippers against the carrier, to grain, occasioned by failure; it is alleged, of the carrier to provide a proper car for its transportation.

The article was shelled corn and was shipped from Kansas City, Missouri, to Mobile Alabama, February 24, 1903. On the 19th day of said month plaintiffs purchased the com from the Ernst-Davis Grain Company which was then in a car numbered 49307, on the defendant’s track. It had come from a point in Kansas to Olathe by another carrier, where it was transferred to defendant’s railroad and from thence to Kansas City. Ernst-Davis Company directed defendant to deliver the ear to the plaintiffs for shipment, and at tbe same time by request of plaintiffs they directed defendant to place tbe car containing tbe corn at the warehouse of M'cNulty for tbe purpose of sacking. Tbe defendant placed tbe car as directed where it was sacked by McNulty, acting for plaintiffs, and weighed by W. E. Hales, deputy weighmaster of tbe Board of Trade, tbe plaintiffs in both instances paying for tbe service. Tbe sacking and weighing was done in tbe car where tbe corn was left and tbe car sealed by tbe deputy weighmaster.

According to their usual custom plaintiffs by their agent Danciger partly filled in a bill of lading showing tbe number of tbe car and its destination. A few days before tbe shipment and before J. H. Barr, defendant’s agent, signed tbe bill of lading, Danciger called at bis office and asked if tbe car would run through to Mobile. Barr told him that it would, and called bis attention to tbe fact that tbe corn was loaded in a stock car. Barr testified: That Danciger came to bis office and gave him tbe number of tbe car; that be called bis attention to the fact that tbe car was a stock car; that be seemed somewhat surprised, and wanted to know bow a car of bulk corn could be loaded in a stock car; and that be, Barr, told him that be presumed that tbe car was boxed up. Tbe bill of lading contained tbe following: “Owners risk of damage on account of being loaded in stock car.” When tbe corn arrived at its destination it was found to be damaged to tbe extent of $110. Tbe damage was attributed to tbe fact that tbe com was not sufficiently protected while in transit because a stock car was not sufficient for that purpose. Tbe consignee paid for tbe corn and plaintiffs seek, to recover as assignees.

Plaintiffs recovered judgment .and defendant appealed.

Tbe first question is one of liability. It is urged that the court should have directed a verdict of tbe jury for defendant on tbe case plaintiffs made out.

Tbe plaintiffs rely upon tbe common law rule that it was tbe duty of tbe carrier to have furnished a safe means, sucb as a bos car, for tbe shipment of tbe corn and that baying failed to comply with tbe law it is liable for tbe damages resulting from its failure of duty in that respect. While defendant admits tbe rule, it insists that it does not govern this case for tbe reason that plaintiffs are estopped from claiming its benefits as they after having been informed that tbe corn was in a stock, car for several days before tbe bill of lading was signed bad a sufficient length of' time for them to have bad it placed in a box car before the shipment bad started for its destination if they bad so desired. That their failure to request a reloading of tbe corn, taken in connection with tbe agreement in tbe bill of lading that they assumed tbe risk of damage on account of tbe corn being loaded in a stock car amounted to a selection on their part of tbe character of tbe car in which it was to be carried, is contended by defendant.

Tbe rule is stated thus: “It is tbe business of common carriers to have vehicles suitable for tbe transportation of tbe freight shipped, and they are responsible for losses occurring in consequence of defects in this regard.. But the carrier is tbe judge of tbe sufficiency of bis carriages in tbe first instance.” [Sloan v. Railroad, 58 Mo. 220.] “A contract though signed by tbe shipper, agreeing to release tbe carrier, will not exonerate him from resulting damages or from his implied duty to furnish suitable means to safely transact bis business. [Potts v. Railroad, 17 Mo. App. 394.] “A shipper who knowingly loads bis bogs into a car not provided with trapdoors, as tbe statute requires, is not estopped from complaining of injury resulting from tbe lack of sucb doors.” [Paddock v. Railroad, 60 Mo. App. 328.] Tbe defendant in that case sought to escape liability on tbe ground that plaintiff by bis contract as a consideration for reduced rate bad waived bis damages. But tbe court held, that, that rate was not a reduced rate and that therefore there was no consideration for tbe agreement. It was contended that plaintiff bad nothing to do with selecting tbe car in question. Tbe defendant selected tbe car and was liable for damages resulting from its in-, sufficiency.

“A carrier cannot exonerate himself from resulting damage by reason of a breach of bis implied duty to furnish suitable means to safely transact bis business ; and this, though tbe cars are seen by tbe shipper, who also attends bis stock. Tbe rule is applicable, in principle to stock pens provided by carriers for the receiving of live stock.” [Mason v. Railroad, 25 Mo. App. 473.]

Where a shipper examined tbe car in which bis bogs were loaded and recited in tbe bill of lading that he found it safe and suitable, tbe carrier was held liable for loss of bogs escaping from tbe car by reason of its defects. [Jones v. Railroad, 115 Mo. 232.]

A law writer says in reference to exceptions to tbe rule we have been discussing that; “Tbe rule bolding railroad carriers bound to furnish cars adapted to tbe goods they undertake to transport does not apply where tbe shipper with means and opportunities of knowledge voluntarily selects the car on which be desires bis property transported. Tbe carrier is not responsible in such case for damages resulting from tbe unsuitableness of tbe car.” [Elliot on Railroads, Vol. 1, sec. 1480.] And tbe law is similarly stated in Hutchinson on Carriers, Vol. 1, sec. 295. This statement of tbe law is not in tbe least in conflict with tbe boldr ing in Jones v. Railroad, supra, where tbe shipper inspected a car that bad defects which be did not discover. We may safely conclude, that bad be discovered tbe defects and with that knowledge without protest shipped bis stock therein the court would have held that be was estopped by bis acts from claiming loss by reason of such defects. In Paddock v. Railroad, supra, although plaintiff had knowledge of the defects in the car, it does not appear that he had any choice in the matter, and was therefore compelled to abide by that selected by the carrier.

In a case where the shipper after due time for deliberation, elected to ship his live stock in a box car instead of a stock car, the carrier was held not to be liable for injury to his stock by reason of injury they suffered in consequence of not being - transported in a suitable conveyance. [Huston Bros. v. Railroad, 63 Mo. App. 671.]

Where the shipper knew of the defects of a box car in which his animal was shipped and attempted to rectify them, it is held that it was a question for the jury, where the animal was injured by such defects, to determine from the facts whether the shipper assumed the risks incident to the defects in question, and whether the carrier furnished a suitable car. [Coupland v. Railroad, 61 Conn. 531; 23 Atl. 870.]

In a case, where fruit was shipped in a refrigerator car without ventilation, which was. injured in transportation by heat for want of ventilation; and where before transportation the shipper kept the car ventilated by keeping side doors open, but they were so constructed that they could not be kept open for transit and were air tight when closed; and where the car was not designed to be ventilated it was held that the carrier was not liable. [Densmore Commission Co. v. Railroad, 101 Wis. 563; 77 N. W. 904.]

Where the consignor was authorized to select cars for transportation of its merchandise and where it made the. selection and damage resulted to the articles shipped by reason of the unsuitableness of the car, it is held that the carrier is not liable. [Frohlick Glass Co. v. Railroad, 138 Mich. 116; 101 N. W. 223.] It is clear from the authorities, and it could not well be otherwise, that when a shipper is afforded the opportunity to select the vehicle in which to transport his goods and he makes such selection with knowledge of its defects, and injury results therefrom the carrier is not liable. Therefore under the application of this rule the plaintiff was not entitled to recover. The car containing the corn was transferred to defendant railroad at Olathe and carried thence to Kansas City, and by order of the owners delivered to the plaintiffs. Plaintiffs with knowledge that it was loaded in a stock car caused the corn to be sacked without removing it, and redelivered it so loaded to the defendant for transportation with the stipulation in the bill of lading mentioned; thus, in the most unmistakable manner indicating to the .defendant that they desired the com to be transported in the stock car. In view of the facts there is no reasonable grounds for any other conclusion. As the plaintiffs failed to make out their case it is not necessary to notice other phases of the case. Reversed.

All concur.  