Chickasaw Cooperage Co. v. Yazoo & M.V.R. Co.

• Decision Date: 01 December 1919
• Docket Number: 26
• Citation: 215 S.W. 897,141 Ark. 71
• Parties: CHICKASAW COOPERAGE COMPANY v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Arkansas Supreme Court

215 S.W. 897

141 Ark. 71

CHICKASAW COOPERAGE COMPANY v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

No. 26

Supreme Court of Arkansas

December 1, 1919

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

E. L Westbrook, for appellant.

1. The provision in the bill of lading that when goods are received on private or other sidings, they shall be at the owner's risk until the car is attached to a train, is of no effect under the Cummins Amendment to Interstate Commerce Act. 38 U.S. Stat. at L., pp. 1196-7. This amendment does not prohibit contracts limiting the liability of the carrier for loss or injury to an amount not greater than that designated in the contract and it has had a far-reaching effect on the right of carriers to limit their liability on interstate shipments by special contract and the limitation pleaded is sustained in cases arising prior to the act but in none since. The cases in 163 N.Y.S. 111 and Ib. 114 sustain appellee's position, but even these and all others are decisions upon causes of action arising prior to the law, as it was when the shipment here was made, but there is not a case that sustains the ruling of the court below. The opposite view is maintained and the Cummins Act sustained in 252 F. 664; 93 S.E. 1048; 174 P. 607.

2. The loss of the car of heading was caused by appellee's negligence in refusing to remove to a place of safety. Having a locomotive and a crew on the scene, it refused to so remove it after being requested to pull the car to a place of safety. 10 C. J. 130, sec. 161, et seq.; 23 A. 643; 93 S.W 849; 26 A. 370; 46 N.W. 428; 4 R. C. L., sec. 491; 25 P. 702; 235 F. 856. The testimony shows negligence and it was error to direct a verdict for defendant.

Fink & Dinning, for appellee.

1. As to interstate shipments a common carrier may limit its common law liability by reasonable stipulations except as to loss or damage by its own negligence or that of its servants, and its power to so do is not abridged by the Carmack amendment as amended. 3 Wall. (U.S.) 107; 226 U.S. 491; 227 Id 639; 223 Id. 97; 240 Id. 632; 241 Id. 319; 244 Id. 332; So. Pac. Ry. Co. v Stewart, advance sheets U. S. Sup. Ct., Feby. 15, 1919, p. 176.

2. The shipment being interstate, the rights and liabilities of the parties "depend upon acts of Congress, the bill of lading and the common law rules as applied in Federal tribunals." 241 U.S. 319; 244 Id. 332.

3. A shipper and carrier may lawfully contract so as to postpone the time when the liability of the carrier as an insurer shall attach, and in such case for loss occurring after the bill of lading is issued, but before the time for the liability as insurer to begin, the carrier will not be responsible unless such loss is due to its negligence. 125 F. 273; 8 Ga.App. 677; 70 S.E. 174; 163 N.Y.S. 111-144; 122 N.E. 456; 95 A. 1002; L. R. A. 1916 C, 606.

4. The phrase, "private or other siding," in section 5 of the bill of lading, includes and contemplates a side track of the kind involved in this case. 8 Ga.App. 677, 70 S.E. 174; 163 N.Y.S. 111-114; 122 N.E. 456; 95 A. 1002; L. R. A. 1916 C, 606.

5. At common law, as interpreted by the Federal courts, a common carrier may lawfully contract for exemption from liability except as against negligence. 3 Wall. (U.S.) 107; 194 U.S. 427; 194 Id. 432.

6. A stipulation in a bill of lading exempting the carrier from loss or damage will be limited to loss or damage not proximately due to its negligence. It is not necessary that the stipulation contain express words so limiting it, but they will be implied by the usual rules of judicial construction. 125 F. 273; 93 U.S. 174; 133 Id. 387; 168 Id. 104.

7. The delay, if any, in moving the car from the side track where loaded, even though resulting from defendant's negligence, was not the proximate but only the remote cause of the loss by fire and such delay does not render the carrier liable. 10 Wall. 176; 104 U.S. 427; 76 Miss. 855.

8. Extracts from the tariff and classifications of defendant, made public records by the filing thereof with the Interstate Commerce Commission under section 16 of the act to regulate commerce as amended, duly certified under seal, are receivable in evidence with like effect as the originals to prove rates, rules and regulations. 8 U.S. Comp. Stat. 1916, sec. 16 and sec. 8584 subsec. 12.

9. The provision of the bill of lading which fixes the time when liability of the carrier commences is a valid agreement. 10 C. J. 137. There is no reason why a shipper and carrier should not be permitted to agree as to the time when liability of the carrier begins. 86 Ark. 179; 93 Id. 537; 70 S.E. 154.

Receiving and delivering freight on spur track of private individuals is purely a matter of contract to which each party may attach any condition desired. 10 C. J. 251. A common carrier may limit or restrict its liability as an insurer by contract with the shipper where such limitation does not include exemption against negligence of the carrier or its servants and a reduced rate is a sufficient consideration to support the limitation. 3 Wall. 108; 194 U.S. 427; Ib. 432; 112 Id. 331. This right is not taken away by the Carmack amendment. 226 U.S. 491, approved in 227 Id. 639; 233 Id. 97, 508; 240 Id. 60; 241 Id. 319; 244 Id. 332; So. Pac. Ry. Co. v. Stewart, adv. sheets U. S. S.Ct. Feb. 15, 1919, p. 1766; 205 Mass. 254; 28 L. R. A. (N. S.) 293; 158 P. 591; 4 R. C. L., § 360. In this case we have a general stipulation that where the shipment is loaded on a "private or other siding" it shall remain at "owner's risk" until it is taken into the actual possession of the carrier. 125 Fed. (C. C. A). 273. See also 93 U.S. 174; 133 Id. 387; 168 Id. 104. The shipment had been delivered to the carrier and the contract signed, but under the terms of the contract the carrier's liability as insurer except as against negligence was postponed for a consideration until the car had been attached to a train. This provision is reasonable. 163 N.Y.S. 111; Ib. 114; 122 N.E. 456. The exemption from liability for loss by fire is fair, reasonable and valid. 3 Wall. (U.S.) 107; 194 U.S. 427-432; 104 A. 144; 125 F. 273.

10. The appellee owed no duty to the appellant to protect the property from loss due to the negligence of the agent of appellant. 93 Ark. 537-546; 154 U.S. 155. The judgment below should be affirmed because (1) the stipulation in the bill of lading is a valid and binding agreement; (2) that appellee was under no legal obligation to protect the property from fire; (3) that the burden of proving negligence was on appellant and it failed; (4) the proximate cause of the injury was the act of some trespasser, for whose negligence appellee was not responsible.

STATEMENT OF FACTS.

The Chickasaw Cooperage Company brought suit against the Yazoo & Mississippi Valley Railroad Company for the value of a car of heading which was burned on a sidetrack in the yards of the company connected with the railroad company's line of railway. In August, 1915, the Hudson & Dugger Company was operating a heading factory at Clarksdale, Mississippi, and it had in its yards a sidetrack or spur which connected with the main line of the defendant's railroad. A car of heading was loaded about 11 o'clock in the daytime and a bill of lading presented to the agent of the railroad company for his signature at 1:30 in the afternoon. The car had been placed there by the railroad to be loaded. The agent of the railroad company signed the bill of lading when it was presented to him and the car was sealed up and ready to be transported by the railroad company. The car of heading was consigned to the plaintiff, Chickasaw Cooperage Company. About 11 o'clock that night a kiln in the factory of Hudson & Dugger Company caught on fire and the flames extended to the car of heading and burned it up. The origin of the fire was unknown.

According to the testimony of the plaintiff, the railroad company had a switch engine there which was in part used in transferring cars from the sidetrack on the factory yards of Hudson & Dugger Company to the main line of the railroad company. This engine was in use on the night of the fire, and the employees of the Hudson & Dugger Company asked the engineer to pull the car of heading to a place of safety, and the engineer in charge of the switch engine refused to do so. There was plenty of time for the engine to have been attached to the car of heading and to have drawn it to a place of safety before it caught on fire.

On the other hand, according to the testimony of the railroad company a piece of hose was stretched across the track and it was forbidden by the fire company to run its engine across the hose. The hose was placed across the track for the purpose of trying to prevent the fire from spreading to a lot of lumber which was there, and much more valuable than the car of heading. The shipment was an interstate one and the bill of lading on the back contained a clause as follows: "Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall be owner's risk until the cars are attached to and after they are detached from trains."

At the conclusion of the testimony the court directed a verdict for the defendant and plaintiff has appealed.

OPINION

HART, J., (after stating the facts).

It is first earnestly insisted by counsel for the plaintiff that the provision in the bill of lading that when goods are received on private or other sidings they shall be at the owner's risk until the car is attached...