Missouri Pacific Railway Co. v. Newberger

Supreme Court of Kansas

Missouri Pacific Railway Co. v. Newberger

73 P. 57, 67 Kan. 846, 1903 Kan. LEXIS 370

CourtSupreme Court of Kansas

DecidedJuly 10, 1903

DocketNo. 13,266

StatusPublished

This text of 73 P. 57 (Missouri Pacific Railway Co. v. Newberger) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Missouri Pacific Railway Co. v. Newberger, 73 P. 57, 67 Kan. 846, 1903 Kan. LEXIS 370 (kan 1903).

Pincite

Opinion

Per Curiam:

This is the second time this litigation has been before us. (Railway Co. v. Newberger, 63 Kan. 884, 65 Pac. 655.) On the second trial the jury found that the special contract set up by the railroad company and purporting to limit its liability was not consented to by the consignees and in effect that it was without validity. The other issue was found in favor of the railroad company; that is, that the fire was not occasioned, and the goods shipped were not destroyed, through the negligence of the railroad company. The general verdict — on a trial involving the extraordinary liability of the railroad company —was in favor of the shippers. The extraordinary liability of a carrier of goods extends, not only during transit to destination, but also until the consignee has a reasonable time thereafter to inspect and remove the goods during business hours. (L. L. & G. Rld. Co. v. Maris, 16 Kan. 333; Mo. Pac. Rly. Co. v. Grocery Co., 55 id. 525, 40 Pac. 899.) A finding was made by the jury that a reasonable time for inspection and removal was not afforded the consignees after the arrival and before the destruction of the goods. No question is made as to the sufficiency of the evidence to support the findings and verdict, as the motion for a new trial once filed was withdrawn. It is now claimed that the last inquiry was limited to the mere question of negligence, and that the former opinion so indicated. An expression of'that kind does appear in the motion, but it appears from the pleadings and the proceedings that the question whether the railroad company was liable as an insurer, or whether its liability was limited by an alleged contract, was submitted at the first trial, and it is manifest that it was also tried and determined in the second trial. In view of these facts, it cannot be held that the parties are confined to the mere matter of negligence.

The only question presented is whether there should [847]*847have been judgment upon the special findings; and assuming, as we must, that the instructions submitting the case were correct and that the evidence did sustain the findings made, it must be held that no error was committed in denying the company’s motion for judgment on the special findings or in giving the judgment that was rendered.

The judgment is affirmed.

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Per Curiam:

This is the second time this litigation has been before us. (Railway Co. v. Newberger, 63 Kan. 884, 65 Pac. 655.) On the second trial the jury found that the special contract set up by the railroad company and purporting to limit its liability was not consented to by the consignees and in effect that it was without validity. The other issue was found in favor of the railroad company; that is, that the fire was not occasioned, and the goods shipped were not destroyed, through the negligence of the railroad company. The general verdict — on a trial involving the extraordinary liability of the railroad company —was in favor of the shippers. The extraordinary liability of a carrier of goods extends, not only during transit to destination, but also until the consignee has a reasonable time thereafter to inspect and remove the goods during business hours. (L. L. & G. Rld. Co. v. Maris, 16 Kan. 333; Mo. Pac. Rly. Co. v. Grocery Co., 55 id. 525, 40 Pac. 899.) A finding was made by the jury that a reasonable time for inspection and removal was not afforded the consignees after the arrival and before the destruction of the goods. No question is made as to the sufficiency of the evidence to support the findings and verdict, as the motion for a new trial once filed was withdrawn. It is now claimed that the last inquiry was limited to the mere question of negligence, and that the former opinion so indicated. An expression of'that kind does appear in the motion, but it appears from the pleadings and the proceedings that the question whether the railroad company was liable as an insurer, or whether its liability was limited by an alleged contract, was submitted at the first trial, and it is manifest that it was also tried and determined in the second trial. In view of these facts, it cannot be held that the parties are confined to the mere matter of negligence.

The only question presented is whether there should [847]*847have been judgment upon the special findings; and assuming, as we must, that the instructions submitting the case were correct and that the evidence did sustain the findings made, it must be held that no error was committed in denying the company’s motion for judgment on the special findings or in giving the judgment that was rendered.

The judgment is affirmed.

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Bluebook (online)

73 P. 57, 67 Kan. 846, 1903 Kan. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-pacific-railway-co-v-newberger-kan-1903.

Opinion

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