Kansas City, P. & G. Ry. Co. v. Pace

• Decision Date: 20 April 1901
• Citation: 63 S.W. 62
• Parties: KANSAS CITY, P. & G. RY. CO. v. PACE et al.
• Court: Arkansas Supreme Court

63 S.W. 62

KANSAS CITY, P. & G. RY. CO. v. PACE et al.

Supreme Court of Arkansas.

April 20, 1901.

Appeal from circuit court, Benton county.

Action by M. A. Pace and L. O. Woods against the Kansas City, Pittsburg & Gulf Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action brought by M. A. Pace and L. O. Woods, shippers of a car of live stock (cattle and hogs) over the Kansas City, Pittsburg & Gulf Railway Company from Siloam Springs to Kansas City. The complaint alleges that defendant company negligently failed to furnish a car within a reasonable time after demand for the shipment of the stock, and also caused delay after the start in the transportation of the stock, by furnishing a disabled engine to haul the car containing the stock; that, by reason of such delays and failure to furnish transportation, the stock was injured in value, and plaintiffs damaged. The defendant appeared and answered, and upon a trial there were a verdict and a judgment in favor of plaintiffs for the sum of $50. From the judgment the defendant appealed.

Read & McDonough, for appellant.

RIDDICK, J. (after stating the facts).

This is an action against a railway company to recover damages alleged to have been caused to live stock by the negligence and delay of the company in shipping the same. One contention of the company is that the plaintiffs cannot maintain the action, for the reason that they did not comply with a provision of the contract of shipment requiring the shipper to give notice in writing of any loss or damage to the property while in the possession of the company within five days after it occurred, and providing that, unless such notice is given, "said loss or damage shall not be recoverable, and suit thereon shall be forever barred." But, if the company wished to avail itself of such a defense, it should have set it up in its answer. The plaintiff was not required to allege or prove that the stock was shipped under a special contract to make the company liable; for, by virtue of the common law, it was liable as a carrier for all damages to property in its possession not caused by the act of God or the public enemy. If the company held a contract limiting its liability, and relied as a defense upon the failure of the plaintiff to comply with the contract, it should not only have set up the contract, but should have stated the particulars in which plaintiff had thus failed. As it did not do this in respect to...