American Railway Express Co. v. Cole

• Decision Date: 04 April 1932
• Docket Number: 239
• Citation: 48 S.W.2d 223,185 Ark. 532
• Parties: AMERICAN RAILWAY EXPRESS COMPANY v. COLE
• Court: Arkansas Supreme Court

48 S.W.2d 223

185 Ark. 532

AMERICAN RAILWAY EXPRESS COMPANY v. COLE

No. 239

Supreme Court of Arkansas

April 4, 1932

Appeal fro Crawford Circuit Court; J. O. Kincannon, Judge; reversed.

Judgment reversed and cause remanded.

A M. Hartung and Warner & Warner, for appellant.

D H. Howell, for appellee.

OPINION

MCHANEY, J.

This is the second appeal of this case. See 183 Ark. 557. Appellee seeks to recover of appellant damages to a car of strawberries shipped from Alma, Arkansas, to Youngstown Ohio, on May 12, 1929. Three specific grounds of negligence were alleged and relied on, for a recovery; first, that there was delay in transportation; second, that an improperly constructed and equipped refrigerator car was furnished; and, third, that the car was not properly iced and re-iced before loading and during transit. There was a verdict and judgment against appellant for $ 474.91.

On the former appeal we held that there was substantial evidence, sufficient to take the case to the jury, on the question of the icing and reicing of the car. The evidence on this appeal on that question is substantially the same as on the former, and the decision on the former appeal on this question becomes the law of the case on this appeal. Coca-Cola Bottling Co. v. Shipp, 177 Ark. 757, 9 S.W.2d 8.

The court submitted to the jury the question of the negligence of appellant as to delay in transportation and the furnishing of an improperly constructed and equipped refrigerator car, over appellant's objections and exceptions, and refused requested instructions eliminating these questions from the jury's consideration. In these respects the court erred as there was no evidence to support these declarations. As to the delay in transportation, the undisputed evidence is that the car was loaded and delivered to the carrier at 8:45 A. M., May 12, 1929; that it departed from Alma in Missouri Pacific train 105 at 11:40 A. M. same date, which was the first available train after loading was completed; that it was promptly transported to St. Louis via Little Rock, where it was reiced, arriving there at 7:17 A. M. May 13, where it was again reiced at 9:05 A. M. The movement thus far was by passenger train. While en route to St. Louis, appellee diverted the car to a firm in Cleveland, Ohio, which diversion order was received by appellant at 6:30 A. M. May 13. After reicing, the car moved in the first available train at 2:37 P. M. same date, in Big Four Special for...