Kansas City Southern Railway Co. v. Embry

• Decision Date: 21 October 1905
• Citation: 90 S.W. 15,76 Ark. 589
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. EMBRY
• Court: Arkansas Supreme Court

90 S.W. 15

76 Ark. 589

KANSAS CITY SOUTHERN RAILWAY COMPANY v. EMBRY

Supreme Court of Arkansas

October 21, 1905

Appeal from Miller Circuit Court, JOEL D. CONWAY, Judge.

Affirmed.

STATEMENT BY THE COURT.

This is an action brought by appellee in the Miller Circuit Court against appellant, the Kansas City Southern Railway Company to recover damages to a piano and sewing machine shipped by plaintiff over defendant's road.

The complaint alleges, in substance, that on September 13, 1901 plaintiff shipped a piano and sewing machine from South McAlester, Indian Territory, to Texarkana, Arkansas, bill of lading being issued at South McAlester, Indian Territory, to be delivered at Texarkana, Ark., in good condition and with the proper care; but that at Howe Junction, a station on said defendant's railway, said piano and sewing machine were put on the railway platform, and by the wilful negligence of the defendant, its agents and employees, were exposed to a severe rain for a period of several hours without protection of any kind, and the piano was thereby damaged in the sum of $ 250, and said sewing machine was damaged in the sum of $ 20.

Defendant in the answer denied each and every allegation of the complaint.

The cause was tried before a jury, and a verdict returned in favor of the plaintiff fixing damages at $ 185 on the piano and $ 15 on the sewing machine.

The articles in question were shipped from South McAlester Indian Territory, to Texarkana, Ark., over the Choctaw Oklahoma & Gulf Railroad from the initial point of shipment to Howe Junction, at which point the two roads cross, thence to Texarkana over appellant's road, and the bill of lading was issued by the agent of the first-named railroad company at South McAlester. The bill of lading contains a stipulation limiting the liability of the connecting carriers to the damages accruing on their respective lines. The two companies maintained a joint station at Howe Junction, with joint agents in charge thereof.

Mrs. C. D. Payne, the mother of the plaintiff, testified that the piano and sewing machine were shipped from South McAlester to Texarkana by her on the 12th of September, 1901, and that she obtained the bill of lading; the piano and sewing machine being the property of her daughter, Mrs. Embry, who was ill at the time. Continuing, this witness said: "It was raining when we left South McAlester. When I got to Howe, it was about 10 o'clock or 10:30. I had to wait for the Kansas City Southern there for a while. When I got on the platform, it was still raining. I noticed the piano on the platform. It was a little station. It was over on one side, and I got off on the other side. I wanted to see if it was my piano. I left my daughter, who was sick, in the station, and went over there, and found it was. I went to the freight office, and asked the agent about it. I said: 'I shipped that piano yesterday evening, and I see it is in the rain.' He said, 'Yes, I will go have it put in.' He got two negroes, and went, and had it put in, in my presence, in the freight office. I left there about 11 o'clock."

Witness further testified that the piano and machine had been wet and badly damaged. That the piano cost $ 525, and that the machine cost $ 65.

C. D. Payne testified that he examined the piano and sewing machine after they arrived at Texarkana, found that they were in bad condition, having been wet. The machine was rusted from dampness, and the parts of the piano were all damp or wet.

The defendant, to maintain the issues upon its part, introduced the deposition of W. C. Charles, who testified in substance that he was the joint agent at Howe for both roads; that he was there in their employ in September and October, 1901. That he remembered the piano very distinctly. It was received from the west sometime during the night over the Choctaw, Oklahoma & Gulf Railroad, and was unloaded by the trainmen on the platform, and remained some time after it was unloaded. On his arrival in the morning at the office he saw the piano sitting on the platform, and was told by the night operator that it was unloaded from an eastbound train. Didn't know whether they refused to set it under, but anyway it was not sitting under the eave of the roof, and had been out in the rain. "My recollection is that the freight remained in Howe about 12 or 15 hours, and was shipped out that evening by the Kansas City Southern local train. I did open the box containing the piano, after taking it into the depot, and, as stated before, I found the piano covered with dust, which showed conclusively that there hadn't been a drop of rain touched it. Freight was not in possession of the Kansas City Southern until it had been placed inside of the freight building and transfer made." The witness also stated, in reference to the custom of receiving freight by one road from the other at Howe, that there were no written or verbal instructions that he knew of. It was simply a custom; the mere fact of freight arriving at the depot would not constitute a delivery until the transfer was made; that he knew of no rules or regulations on the subject -- simply referred to the custom.

Defendant introduced as witnesses other employees at Howe Junction, who testified in substance the same as the foregoing. One of them made the following statement concerning the handling of freight at Howe Junction: "As I understand it, when freight is delivered, we get the bill, we write up the bill and register it to the Kansas City Southern books as received for shipment. Until this bill is registered, I understand that it is the property of the Choctaw, until they receive the bill, and it is registered up. I know we hadn't...