Chicago, Rock Island & Pacific Railway Company v. Miles

• Decision Date: 13 December 1909
• Citation: 123 S.W. 775,92 Ark. 573
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MILES
• Court: Arkansas Supreme Court

123 S.W. 775

92 Ark. 573

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MILES

Supreme Court of Arkansas

December 13, 1909

Appeal from Logan Circuit Court; Jeptha H. Evans, Judge; affirmed.

STATEMENT OF FACTS.

The appellee sued appellant for damages which he alleged resulted to him by reason of the negligent failure of appellant to deliver a carload of Hereford cattle at Brady, Texas, on or before April 18, 1908. Appellee alleged that, before entering into the contract with appellant to deliver the cattle at Brady, he notified appellant that it was necessary for the cattle to be a Brady on or before the 18th of April, 1908, in order that they might be sold at a public auction sale to take place on that day, and that appellant, with full knowledge of the purpose for which the shipment was being made, contracted with appellee to transport and deliver the cattle. The appellee alleged that the negligent failure of appellant to comply with its contract caused appellee to lose the high market arranged for, and provided by the auction sale, and that by reason thereof appellee was damaged in loss of value of the cattle amounting to $ 1,200.

The appellant denied the material allegations, and set up in defense that the cattle were shipped under a contract which provided that appellant should not be liable for any loss or damage to the cattle that did not occur on appellant's line; that the cattle were not to be transported within any specified time, nor delivered at destination for any particular market, and that in case of loss appellant would be subjected only to a limited liability set forth in the contract.

The evidence on behalf of appellee tended to show that in the year 1907 he, with a number of breeders of Hereford cattle in Texas, decided to hold an auction sale at Brady, Texas, which is located in the Middle Plains country, and is distinctly a cattle country; that they advertised this sale extensively over four or five counties to take place on the 18th day of April, 1908; that he contributed to this sale ten (10) pure bred and registered bulls and two (2) heifers; that he put these animals up in the previous September, and fed and carefully cared for them all through the previous winter that they were in fine condition, and weighed from 1,200 to 2,100 pounds; that when the time approached for the sale he wrote to the agent of the defendant, stating that he wished to ship his cattle from Booneville, Arkansas, to Brady Texas, and ordered a car for them, and explained in detail the purpose and necessities of the shipment, and selected the route they should travel, and he and the agent, after a full discussion of all the details relative to this shipment agreed that the cattle should leave Booneville on Monday, the 13th, and by so doing they would reach Brady by the following Friday; that he explained to Mr. Briggs, the agent of the defendant, that he was unwilling to ship his cattle on a limited liability contract, and that he did not sign or authorize anybody else to sign for him any such contract that the contract he had with the railroad company was an oral contract entered into by himself with the company; that he entered into no written contract; that Mr. Briggs, the agent of the defendant, agreed to put these cattle in Brady, Texas, in time for the sale; that he would not have shipped them if this agreement had not been made; that the agent of the defendant told him the cattle would get to Brady Wednesday morning or Wednesday night before the sale on Saturday; that he shipped his cattle from Booneville by way of Holdenville, Oklahoma?, and Fort Worth, Texas, to Brady, Texas; that the cattle failed entirely to reach Brady until more than a week after the sale; that his cattle were worth in that market and at that sale an average of $ 200 apiece; that he had no market at his home in Arkansas for these cattle, and that, after said cattle failed to reach Brady in time for the sale, he managed to sell them at private treaty, and without the purchaser seeing them, at $ 100 apiece.

There was evidence tending to show that the cattle did not reach Brady on the day specified because of the negligent delays in shipment by appellant and connecting carriers; that but for such delay the cattle would have passed the place in route and have been delivered before the unprecedented floods came that washed away a bridge, which thereafter rendered it impossible to deliver the cattle at the place of destination in time for the auction sale.

The testimony on behalf of appellant tended to show that the cattle would have reached their destination on the Saturday morning of the day that the auction sale took place, but for the fact that a certain bridge was washed away by unprecedented floods, which delayed their transportation for several days. The testimony for appellant tended to show that the written contract was the one entered into with appellee covering the shipment.

The appellant introduced a written contract of shipment, signed by Briggs, appellant's station agent at Booneville, and by O. L. Miles. The evidence showed that the name of O. L?. Miles was signed by J. T. Moore, who testified that he was to look after the shipment, that Miles sent him to deliver the cattle to the railway company and to look after them while they were being transported. He signed Mr. Miles's name to the contract and paid the freight charges, Miles having furnished him the money; that Miles never instructed him to sign a contract limiting the liability of the company for the loss of the cattle, etc.

The contract contained a provision that each carrier's liability under the contract ceased upon delivery by it to its connecting carrier and exempting the appellant as the initial carrier from loss occurring beyond its own line. It also contained a provision that cattle were not to be transported within any specified time, nor delivered at destination at any particular hour, nor in season for any particular market. There were provisions limiting the liability in case of loss to an amount not exceeding the sum named. There were also provisions by which the owner waived any cause of action for damages under any prior verbal contract, and acknowledging that he had had the option between the contract at carrier's risk and the contract made.

The court gave instructions on its own motion, to which appellant duly excepted, and refused prayers for instructions presented by appellants, and to the court's ruling in this particular appellant excepted. The law of the case will be commented on in the opinion.

The jury returned a verdict for $ 1,036. The judgment was entered accordingly, and this appeal followed.

Judgment affirmed.

Thos. S. Buzbee and Geo. B. Pugh, for appellant.

The damages in such cases are such as may be considered to arise naturally from the breach, or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract. 9 Exch. 355. It was appellee's duty to make the damages as small as possible. Suth. Dam., § 90; 22 Mich. 117; 102 Mass. 132. The damages were caused by the act of God, and appellant is not liable. 115 Mass. 304; 10, Wall. 176; 20 Pa.St. 171; 76 Miss. 885; 101 Va. 778; 88 S.W. 117; 67 S.W. 129; 62 Mo. 527; 93 S.W. 851; 139 U.S. 237; 58 Ark. 157; 23 O. St. 523; 13 Am. R. 264.

Robert J. White, for appellee.

Where the negligence of the carrier concurs with the act of God in producing a loss, the carrier is not exempted from liability by showing that the last cause of damage was the act of God.

OPINION

WOOD, J. (after stating the facts).

1. It is wholly immaterial, under the evidence in this case, whether the cattle were shipped under an oral or written contract. For in either case appellant would be liable for any damages to appellee caused through its negligence or the negligence of connecting carriers. If appellant or connecting carriers failed to exercise ordinary care in the transportation of the cattle, resulting in delays by reason of which the cattle failed to reach their destination in a reasonable time after they were delivered to appellant for shipment, then appellant would be liable to appellee in damages for whatsoever injury the latter sustained as the direct and proximate result of such negligence. St. Louis S.W. Ry. Co. v. Grayson, 89 Ark. 154, 115 S.W. 933.

2. The court did not err in admitting the evidence of appellee as to the amount of his damages by reason of the failure of appellant to deliver the cattle at Brady on the 18th day of April, 1908.

Appellant had notice of the day of the sale, and of all the circumstances in detail as to why the sale was planned and fixed for that day. The sale was for a special purpose, and was extensively advertised for that day. Appellant, according to the evidence of appellee, had notice of all this, and made its contract with full knowledge that it was necessary to get the cattle to Brady for the sale on that day if appellee was to secure the benefit of that sale. Appellant had no right to assume that the sale would continue from day to day, or would be as profitable to appellee if made on some other day. No other day was thought of. That was the particular and only day. Having notice of the special damage that would result to appellee if he failed to get his cattle to that auction sale, and having contracted with appellee after such notice to deliver them for that sale, appellant can not be heard to say that the damages that appellee sustained by reason of the loss of that particular sale were not in contemplation of the parties to the contract. Hadley v. Baxendale, 9 Exch. 341. See Western Union Tel. Co. v. Hogue, 79 Ark. 33, 94 S.W. 924; Western Union Tel. Co. v. Ranies, 78 Ark. 545, 94 S.W. 700.

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