Kansas & A. V. Ry. Co. v. Ayers

• Decision Date: 02 January 1897
• Citation: 38 S.W. 515
• Parties: KANSAS & A. V. RY. CO. et al. v. AYERS.
• Court: Arkansas Supreme Court

Page 515

38 S.W. 515

KANSAS & A. V. RY. CO. et al. v. AYERS.

Supreme Court of Arkansas.

January 2, 1897.

Appeal from circuit court, Sebastian county; Edgar E. Bryant, Judge.

Action by C. C. Ayers against the Kansas & Arkansas Valley Railway Company and the Missouri Pacific Railroad Company for damages to a shipment of live stock. From a judgment in favor of plaintiff, defendants appeal. Reversed.

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 appellants' 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 live stock 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 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 Ft. Smith, who informed the appellee (the plaintiff below) that the train which would carry his stock would leave Muldrow at 10:42 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 nonarrival 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 that 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,...