Kansas & Arkansas Valley Railroad Co. v. Ayers

• Court: Arkansas Supreme Court
• Writing for the Court: HUGHES, J.,
• Citation: Kansas & Arkansas Valley Railroad Co. v. Ayers, 63 Ark. 331, 38 S. W. 515 (Ark. 1897)
• Decision Date: 02 January 1897
• Parties: KANSAS & ARKANSAS VALLEY RAILROAD COMPANY v. AYERS

38 S.W. 515

63 Ark. 331

KANSAS & ARKANSAS VALLEY RAILROAD COMPANY v. AYERS

Supreme Court of Arkansas

January 2, 1897

Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

STATEMENT BY THE COURT.

To reverse a judgment recovered by the appellee for $ 250 against the appellants, on account of damages claimed to have been sustained by the appellee, in injury done to his cattle shipped over appellant's railway, this appeal was taken.

In consideration of a reduced rate, the shipper (the appellee) entered into a contract with the carrier (the railway company), as follows: "First. That the livestock covered by this contract is not to be transported within any specified time, nor delivered at any particular hour, nor in season for any particular market.* * *

"Fifth. That, as a condition precedent to any damages or any loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general office, or to the nearest station agent of the first party, or to the agent at destination, etc., to some general officer of the delivering line, before such stock is removed from the point of shipment, or from the place of destination, and before such stock is mingled with other stock, such written notice to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated; and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims." It did not appear in the testimony that the notice as required by the above clause was given. The proof shows there was an agent at the depot or station where the cattle were delivered, and that he saw the cattle, and knew some of them were dead, and that they Were in a bad shape generally, but it does not show that he knew or was informed that any claim would be made for damages. The cattle were shipped at Muldrow for Lenapah in the Indian Territory.

The contract was made with the agent at Fort Smith, who informed the appellee (the plaintiff below) that the train which would carry his stock would leave Muldrow at 10.40 a. m. The appellee loaded his cattle at 9:45 a. m. on two cars furnished by the company for that purpose. No train stopped for his two cars of stock until 5:30 p. m., which train left Muldrow at 5:30 p. m., and arrived at Lenapah at 5:30 a. m where he unloaded the stock. There were four dead cattle in the cars, and a number of them down, and the balance in bad condition, when they arrived.

The contention of the appellee is that the delay caused by the non-arrival of the train that was to take his cattle at 10:42 a. m. till 5:30 p. m. caused the injury to his cattle, as thereby they were on the cars some seven hours longer than they would have been had they been taken at 10:42 a. m. It appeared that the running of the train which was to take appellee's cattle at 10:42 a. m. was abandoned by the railway company, as they did not have freight sufficient to justify running it that day, but the appellee was not notified of that, and hence loaded his cattle on the cars for the train at that hour, and all the time afterwards expected the train until one came, as stated, at 5:30 p. m. It is also stated by the counsel for the appellee that said contract in regard to notice was unreasonable.

Judgment reversed and cause remanded for new trial.

Dodge & Johnson for appellant.

1. When a shipper is afforded an opportunity to contract with a carrier by paying one of two rates, by which the liability is limited or not limited, and the shipper chooses the limited liability rate, the contract is valid, and he is bound by it. Railway Company v. Cravens, 57 Ark. 112. See 46 Ark 243; 47 id. 103; 50 id. 412; 52 id. 30; 107 U.S. 106; 112 id. 337; 155 id. 339; 77 Mo. 634; 21 S.W. 80.

2. By the fifth clause of the contract, it was made a condition precedent to a recovery that the shipper should give notice in writing of his claim, etc., before he removed the stock. No notice was given, and there can be no recovery.

3. The fifth clause is not unreasonable, and the question whether it was reasonable or not was for the jury. 11 So. Rep. 791; 24 S.W. 355; 18 S.E. 88; 59 F. 879; S.C. 8 C. C. A. 341; 24 S.W. 354; 21 id. 77; 78 Tex. 374; 14 S.W. 666; 21 Wall. 264; 54 Miss. 566; 28 Am. Rep. 388; 5 Hurl. & Norm. 867; 30 S.W. 1113; 30 id. 500; 39 N.E. 426.

Grace & Forrester for appellee.

A common carrier cannot contract against liability for negligence. 17 Wall. 357; 46 Ark. 243; Lawson, Bailments, secs. 137, 163. An exemption from liability must be read as if the words "except for negligence" were inserted after them, and an exemption from "delay" does not covers negligent delay. 37 La. An. 468; 3 N.Y.S. 708; Lawson, Bailments, sec. 162; 56 N.Y. 168; Hutchinson, Car. sec. 261; 39 Ark. 528; 115 Ill. 407; 71 N.Y. 180; 27 Am. Rep. 28; 29 Barb. 132; 24 N.Y. 222;

The complaint is for injury by negligence, and the contract is no defense. Its clauses are void because unreasonable. 86 Tenn. 198; 6 S.W. 209; 4 Lawson, Rights, Rem. & Pr. sec. 1857. The fifth article is too vague, uncertain and indefinite, and is void. Lawson, Bailments, sec. 162; 39 Ark. 523. See 67 Tex. 166; 4 F. 170, 707; 23 S.W. 930; 25 id. 1019; ib. 142. The provisions of a contract as to the manner and time of presenting claims must be reasonable, which question is one of law for the court. 54 Ark. 121-3; Wheeler on Carriers, 125; Lawson, Bailments, sec. 158; 57 Wis. 562; 2 Hilt. 19; 2 Daly, 117; 39 Ark. 528-9; 51 Ind. 127; 2 S.W. 574; 16 S.W. 775; 4 F. 170, 707. If cattle are placed on board the cars in time for the next regular train, and notice given to the company's agent, the company is liable for damage occasioned by not forwarding them by that train. 41 Ill. 73; 67 Am. Dec. 215, and notes.

HUGHES, J. BATTLE, J., dissents.

OPINION

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

Where the facts are undisputed, the reasonableness of such a contract is a question of law for the court; but where there is dispute about the facts, the reasonableness of the contract is a question of fact for the jury. In this case we think the contract was correctly held to be a reasonable one. International & G. N. R. Co. v. Garrett, 5 Tex. Civ. App. 540, 24 S.W. 354; Missouri Pacific Ry. Co. v. Childers, 1 Tex. Civ. App. 302, 21 S.W. 76; Texas & Pacific Ry. Co. v. Adams, 78 Tex. 372, 14 S.W. 666; Texas & Pacific R. Co. v. Adams, 78 Tex. 372, 14 S.W. 666; Texas & Pacific Ry. Co. v. Barber, 30 S.W. 500; Case v. Cleveland, C. C. & St. L. Ry. Co., 11 Ind.App. 517, 39 N.E. 426.

As we understand, there is no dispute about the facts, and that all the facts and circumstances are fully presented in the evidence, and that by them it is shown that the contract is a reasonable one. It is true that one day (the time limited by the contract within which the notice was required to be given by the appellee of his intention to claim damages) was short; yet, when we consider the circumstances, it appears that it was sufficient.

The appellee was obliged by it to give notice of his intention to claim damages, but not to specify the amount of damages he intended to claim, but only to make known to the company his intention to claim damages for the injury done the cattle before they were removed and mingled with other...