Reynolds v. St. Louis, Iron Mountain & Southern Railway Co.

As stated by defendant there are but two controlling questions in this case:

First, whether there is any evidence tending to show *612that the St. Louis, Iron Mountain &. Southern Railway Company was operating the railway over which plaintiff’s cattle were transported/or in other words was the special contract pleaded and proven, the contract óf the Wabash company by whom it purported to have been made, or was it the contract of the Iron Mountain company. Second, if the contract was the contract of the Iron Mountain company, was there a sufficient compliance with the terms thereof, wherein it was required to-give sworn notice of claim for damages within five days after the cattle were unloaded.

There was no evidence introduced by defendant, save the written contract of the 'shipment, which, on the face thereof, was made with the Wabash, St. Louis & Pacific Railway Company, and contained a stipulation that sworn notice of loss should be given defendant within five days after the cattle should be unloaded.

For the purpose of showing that defendant was operating the railway, as alleged, and that he served the notice of loss, as required by the contract, plaintiff introduced in evidence a lease, duly recorded, from the Wabash, St. Louis & Pacific Railway Company, to defendant, for a term of ninety-nine years. And also the following return of the sheriff, on the summons in the cause

‘ ‘ Executed the within writ, in the county of Schuyler, on the eighth day of April, A. D., 1884, by leaving a copy of the within summons, and a copy of the petition in the within named cause, with' W. K. Centner, station agent of the within named defendant, at Lancaster, Missouri, the president and other chief officers of defendant being absent from and not found in said county.”

Also a notice to this defendant, under the statute, in which this defendant was required and notified to produce at the trial a notice of loss received by it, on or about January 12, 1884, on account of cattle shipped by plaintiff on its road on January 8, 1884. Incompliance with this notice defendant produced in court and plaintiff introduced in evidence, a notice of lose, properly *613sworn, to and addressed “ To the general freight agent of the Wabash St. Louis and Pacific Railway Co.” Plaintiff’s testimony showed this notice was enclosed to defendant by his agent, Mr. Cassidy, January 12, 1884. Witness Dyer testified that the defendant s depot agent at Q-lenwood Junction, while in transit between Downing and St. Louis, refused to permit him to remove the cattle from a small pen to a large one. I regard this evidence as sufficient to establish prima faeie, that defendant was operating the road over which plaintiff shipped; and that it was notified in the manner and within, the time stipulated in the contract.

There is evidence of a lease from the Wabash, St. Louis & Pacific Railway Company to defendant; this established the right of possession in defendant, if no more.

The introduction of this lease in evidence was supplemented by showing that the notice to produce the claim for. damages was addressed to this defendant. That this defendant responded to that notice by producing the claim which was addressed to the general freight agent of the Wabash, St. Louis & Pacific Railway Company. That this claim stated the shipment was made over defendant’s road and the damages were sustained on this defendant’s road, between Downing and St. Louis, Missouri. That this notice to produce was not only served on defendant and responded to by it, but it specifically calls for a claim of damages occurring on •defendant’s road, giving the date of shipment and the time when defendant received the claim. Plaintiff was permitted to introduce in evidence the return of the sheriff on the summons in this cause.-

This was admitted, I suppose, merely to show that defendant had a station agent in Schuyler county, and if it had been followed by evidence showing he was in charge of a station on the line over which these cattle were shipped, it would have been legitimate evidence in «connection with the balance, as tending to show posses*614sion and operation of the road. As it was, no harm has-resulted to defendant, as, under the evidence introduced,, unexplained and uncontradicted by defendant, the court could have made no other finding than it did.

The judgment is affirmed.