Fordyce v. McFlynn

• Decision Date: 01 July 1892
• Citation: 19 S.W. 961
• Parties: FORDYCE <I>et al.</I> v. McFLYNN <I>et al.</I>
• Court: Arkansas Supreme Court

Page 961

19 S.W. 961

FORDYCE et al. v. McFLYNN et al.

Supreme Court of Arkansas.

July 1, 1892.

Appeal from circuit court, Ouachita county; CHARLES W. SMITH, Judge.

Action by Samuel McFlynn and another against S. W. Fordyce and A. H. Swanson, receivers of the St. Louis, Arkansas & Texas Railway Company, to recover the value of a lioness killed while being carried on defendants' road, and damages resulting from the loss of the animal. Plaintiffs had judgment, and defendants appeal. Reversed.

The contract between the parties was as follows: "This memorandum of agreement, made in Texarkana, Texas, this the 19th day of September, 1890, by and between the St. Louis, Arkansas and Texas Ry. Co., in Missouri, Arkansas, and Texas (S. W. Fordyce and A. H. Swanson, receivers,) of the first part, and the McFlynn and Hall circus, by A. P. Roche, contracting agent, of the second part, witnesseth that, for and in consideration of the stipulations and agreements hereinafter set forth, the said party of the first part agrees to furnish transportation over its lines in Arkansas, Louisiana, and Texas for said show, consisting of one stock car, one box car, three flat cars, and one passenger coach, containing thirty (30) employes of the show; said equipment to be furnished by parties of the second part free of mileage. And the party of the first part further agrees to furnish transportation over its lines to five (5) advance advertising agents with advertising matter, said transportation to expire October 31st, 1890. For transportation over the lines of said party of the first part in Arkansas, Louisiana, and Texas the said party of the second part agrees to pay for each run at the rate of one dollar and forty cents ($1.40) per mile, with a minimum charge of forty-five dollars, ($45.00,) the same to be prepaid to the agents of the party of the first part before leaving stations. It is further agreed and understood between the parties hereto that the six (6) cars above described shall be transported on regular freight trains of the railway company, except where extra trains are run, and it is convenient to both parties to this contract for the transportation to be performed by such extras. This agreement further provides that the party of the first part shall not be held liable for any loss, damage, delay, or any inconvenience that may result from such transportation. The cars above referred to are to be placed on switches by the said party of the first part at convenient places to load and unload, and are to be equipped by the owners thereof as required by the rules and regulations of the railway company. It is also understood and agreed that the cars are to be loaded and unloaded entirely by the said party of the second part. * * *"

At the request of plaintiffs, the following instructions were given: "(1) The jury are instructed as a matter of law that a railroad cannot lawfully contract for exemptions from responsibility in the carrying of freights or animals for the negligence or carelessness of itself or its servants, and if they find from the evidence that the lion was lost to plaintiffs without any negligence on the part of plaintiffs, but the negligence or carelessness of defendant or its agents, they must find for the plaintiffs the value of the lion as proven, notwithstanding the contract offered in evidence in this case. (2) If the jury find from the evidence that it was the duty of the conductor to examine the train before starting, and ascertain if the same was properly loaded, and, in the event it was not properly loaded, to have it corrected, and that he did so examine and found no fault, then no fault can attach to plaintiff for want of proper loading. (3) If the jury find from the testimony that plaintiffs were the owners of the flat car and other rolling stock in the train, and by special contract with defendants were to equip, load, and unload the same, and that servants of plaintiffs were by said contract to...