Bush v. Beason
| Decision Date | 29 October 1917 |
| Docket Number | 191 |
| Citation | 198 S.W. 130,130 Ark. 569 |
| Parties | BUSH, RECEIVER ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BEASON |
| Court | Arkansas Supreme Court |
Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.
Judgment affirmed.
E. B Kinsworthy and W. R. Donham, for appellant.
1. The verdict is contrary to the law and the evidence and the court erred in not directing a verdict for defendant.
The appellant is not liable, because (1) the carriage was gratuitous, (2) the injury was due to the inherent vices and propensities of the animals shipped, and (3) appellee could not abandon the mule and require appellant to pay for it. The court erred in its instructions. 5 Cyc. 183, 186; 11 Ark 189; 23 Id. 61; 101 Id. 75; 103 Id. 12; 22 Cyc. 1081-2; 46 Ark. 236; 83 Id 87; 10 C. J. 122-3.
2. The carriage was gratuitous, the transportation free. 16 Mo. 216; 2 Story (U.S.) 16; 36 Am. Rep. 501; 6 Cyc. 365; 46 Am. Dec. 393; 14 Ala. 249; 48 Am. Dec. 97; 67 Barb. (N.Y.) 513; 10 C. J. 39, 45; 6 Bush, 572.
3. Where one is damaged, it is his duty to arrest and reduce the loss. 67 Ark. 112; Ib. 371; 93 Id. 537; 13 Cyc. 71-5.
J. C. Ross, for appellee.
1. The transportation was for the mutual benefit of both parties. Ordinary and not merely slight care was required. 61 Ark. 302, 307; 98 Id. 259.
2. Gross negligence was proven. 2 Hutch. on Car. (3 ed.) 707.
There is no error in the instructions and the judgment should be affirmed.
The plaintiff, Johnson Beason, instituted this action against the receiver of the St. Louis, Iron Mountain & Southern Railway Company to recover the value of a mule shipped over the railroad from Malvern to Dumas while the road was being operated by the receiver.
It is alleged in the complaint that plaintiff was employed by a foreman of the receiver to do repair work on the railroad, and that the mules were transported by rail to the place where the work was to be done, and that by reason of the negligence of defendant the mule was injured so that it became worthless. The testimony adduced by plaintiff tended to show that he was engaged with a lot of teams in doing railroad work; that he was employed by a foreman to go to Dumas, or near that place, with his teams for the purpose of working on the railroad, and that his teams were shipped to Dumas for that purpose. In other words, that his teams were shipped free of charge, or "dead-headed," as expressed by one of the witnesses, in consideration of the fact that he was under contract to perform repair work on the railroad. Other stock was shipped at the same time, some of it the property of plaintiff, and some of it the property of other employees who were going to the same place to work, and the evidence also tended to show that the shipment of stock was handled very roughly by the trainmen, and that this mule was injured by reason of such rough handling.
The law applicable to the case has been stated by this court in the case of St. L. S.W. Railway Co. v. Henson, 61 Ark. 302, as follows:
The second rule stated above is the one applicable to the present case, for the...
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