Kansas City, Pittsburg & Gulf Railroad Co. v. Barnett

• Decision Date: 16 March 1901
• Citation: 61 S.W. 919,69 Ark. 150
• Parties: KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY v. BARNETT
• Court: Arkansas Supreme Court

61 S.W. 919

69 Ark. 150

KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY v. BARNETT

Supreme Court of Arkansas

March 16, 1901

Appeal from Little River Circuit Court, WILL P. FEAZEL, Judge.

Reversed and remanded for new trial.

Read & McDonough, for appellant.

The mere delivery of cattle into the stock pens of a railroad company does not fix upon it the liability of a common carrier. 1 S.W. 446; S. C. 27 Am. & Eng. R. Cas. 49; 42 Ark 200; 60 Ark. 338; 26 S.W. 312. To hold the company for loss or injury of goods tendered for carriage, in addition to a delivery to the shipper, there must be shown an actual or implied acceptance for immediate shipment. Hutch. Carr § 82; 5 Am. & Eng. Enc. Law (2d. Ed.), 181. As to distinction between mere receiving and acceptance, see Hutch. Cart. § 82; Tied. Sales, § 114. As to difference between railroad company's liability as a common carrier and as a warehouseman, see: 59 Ark. 317; 46 Ark. 222; 60 Ark. 375; 42 Ark. 200. Appellee's recovery is barred by his own failure to comply with his contract by loading the cattle. 56 Ark. 429; 50 Ark. 397; 46 Ark. 243. The court erred in its instruction as to the measure of damages. Appellee should have done all in his power to lessen the damages. Hutch. Carr. § 773. It was error to refuse the first instruction asked by appellant. Hutch. Carr. § 94; 56 Ark. 288; 42 Ark. 200; Hutch. Carr. § 82.

Oscar D. Scott and F. H. Taylor, for appellee.

BATTLE, J. WOOD, J., did not participate.

OPINION

BATTLE, J.

R. L. Barnett brought this action against the Kansas City, Pittsburg & Gulf Railroad Company to recover damages on account of the loss and escape of, and injuries to, cattle delivered to and received by the defendant for transportation over its line of railroad. Plaintiff states his cause of action as follows: "On the 29th day of March, 1898, the plaintiff was the owner of 104 head of cattle, which he had gathered at Wilton, in Little River county, in the state of Arkansas, on the defendant's line of railway, for the purpose of shipping them to Bonham, Texas, to be delivered and placed on the market at said last-mentioned place by the 30th day of March, 1898. That said Wilton was then and is now a station kept up and maintained by the defendant on its said line of railroad, where it receives cattle and freight generally for shipment, and that on said first-mentioned date the plaintiff applied to defendant at said station for cars and transportation over its said road for the purpose of shipping his cattle over the defendant's road to Texarkana, Texas, and from there to Bonham, Texas, over another road; and said defendant company, through its authorized agent, contracted and agreed with plaintiff to receive and ship his cattle as desired by him, and directed the plaintiff to deliver said cattle in its stock pen at said station, which stock pen it had erected, and did then maintain, for the purpose of receiving cattle and other stock for shipment. That plaintiff then and there delivered all of said cattle in said pen to the defendant, and that defendant did then and there receive Said cattle for the purpose of transporting the same for him to Texarkana, and on to Bonham, Texas. That said defendant company had carelessly and negligently permitted said pens to become out of repair, and that the fence around the same was weak and partly rotten, and said company had negligently and carelessly failed to keep the same in repair and strong, and in good condition suitable for holding stock while in said pen, of all of which said company had full knowledge. That after said defendant company had received from the plaintiff all of his said cattle, and while it had them in said pen and in its possession for shipment, it carelessly and negligently permitted all of said cattle to escape from said pen, and from its possession, by reason of the unfitness of said pen to hold cattle, and by reason of its negligence in leaving the gates of said pen unfastened; and, by reason of said carelessness and negligence on the part of the defendant, said cattle scattered out over the country, off and away from said station and beyond the reach and control of the plaintiff; and that the defendant negligently, carelessly and willfully failed and refused to regather said cattle, or any part of them. That, by reason of the escape of said cattle, plaintiff was compelled to pay out the sum of two hundred and thirty dollars ($ 230) to have them regathered and fed during the time they were being regathered and delivered at Wilton station for the purpose of shipping the same. That plaintiff was and has been unable to find and regather five (5) head of said cattle that escaped from said stock pen, and the escape of the said five (5) head of cattle was a total loss to the plaintiff; and that they were worth upon the market at said station of Wilton the sum of $ 67, three head being grown cows and being worth fifteen dollars ($ 15) per head, and two (2) head, being yearlings, worth eleven dollars ($ 11); that he recovered ninety-nine (99) head of said cattle that escaped from said stock pen, and that while they were out they became gaunt and fell off in flesh, by reason of not having any feed, and being scattered out in a country where there was not sufficient range at that time to keep them up; and said cattle were bruised and otherwise injured by reason of said escape; and that when recovered they were in such bad condition generally as to considerably decrease their value upon the market from what it was before the escape, which amounted to $ 2.50 per head less in value than what they were just before said escape, aggregating a damage to said cattle of $ 247.50. That, by reason of the escape of said cattle as aforesaid, the plaintiff was delayed sixteen days in delivering said cattle at Bonham, Texas, and that during that time the market price on cattle decreased, and by reason thereof plaintiff received $ 4 per head for said cattle less than he would have received for them had they not been permitted to escape from defendant's pen at Wilton, Arkansas, and had they been shipped at the time and on the terms agreed upon by the defendant and delivered at Bonham, Texas, in as good condition as they were when they were delivered to the defendant for shipment; which item of damage to plaintiff, by reason of the decrease in value of said cattle upon the market, aggregating the sum of two hundred and thirty-two dollars ($ 232). That when said cattle escaped the plaintiff, R. L. Barnett, devoted sixteen days of his time in looking after the recovery of said cattle, and lost said time from his other business, which said time was reasonably worth the sum of eighty dollars ($ 80), and that he paid out his railroad fare and necessary expense in looking after the recovery of said cattle after their escape the sum of twenty dollars ($ 20), by reason of which he was damaged in the aggregate sum of one hundred dollars ($ 100)."

The defendant answered, and denied the allegations in the complaint. The issues thus found were tried by a jury, and a verdict was rendered in favor of the plaintiff for the sum of $ 845 and six per cent. interest thereon from the first day of, April, 1898; and judgment was rendered upon this verdict for $ 844.40; and the defendant appealed.

R. L. Barnett, the plaintiff, testified substantially, as follows: On the 29th of March, 1898, at Little River county, in this state, he purchased from Gus Palmer 104 head of cattle, consisting of cows, yearlings, and one bull. The stock were delivered on the day of the purchase, between 2 and 4 o'clock in the evening, at Wilton, a station on defendant's railroad, in this state, in the pens of the defendant, which were made in the manner pens for loading and unloading cattle on and off trains are ordinarily constructed. As soon as the cattle were delivered in the pen, he saw the agent of the railroad about their shipment, and told him that he had put 104 head of cattle in the pens to be shipped to Bonham, Texas, and asked him about what time the railroad company would pull the cattle out, and the agent replied that he did not know. There was no agreement between the plaintiff and the agent about loading the cattle. The agent said he would do so. (It is usual and the rule for railroad companies to put cattle on their trains.) About sundown the plaintiff put twelve of the cattle on the cars provided by the defendant for that purpose. He delayed putting the remainder in the cars "because putting them into the cars jammed them around and would damage them." He applied to the agent the second time to know when the cattle would be hauled away, and he said he thought it would be about 10 o'clock that night, and later in the night said it would be sometime. Finally the agent advised the plaintiff to go to bed and promised, if he would do so, to wake him up when the train came and the cattle were put on the cars. About 12 o'clock in the night the agent came and woke him up, and told him that his cattle were out and gone. The next morning plaintiff found all the cattle, except those in the cars and the bull, were gone. They had made their escape by breaking the fence of the pen near the gate. After this he went to Texarkana, and saw Mr. Snooks, an agent of the railroad company, and the company refused to collect the cattle for him. He then employed Goolsby, Goldsmith and Gardner, who knew the cattle, to do so, and they found and collected 99 head. While they were doing so, he carried on negotiations with Mr. Snooks, which continued three or four days. He then returned to Wilton. He spent $ 20 in railroad fare and other traveling expenses on account of the...