Missouri & N. A. R. Co. v. Pullen
| Decision Date | 19 April 1909 |
| Citation | 118 S.W. 702 |
| Parties | MISSOURI & N. A. R. CO. v. PULLEN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Boone County; Brice B. Hudgins, Judge.
Action by B. B. Pullen against the Missouri & North Arkansas Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
W. B. Smith and J. Merrick Moore, for appellant. J. W. Story (J. Sam Rowland, of counsel), for appellee.
On February 15, 1907, the plaintiff, B. B. Pullen, delivered for carriage at Mayfield, Ky., to the Illinois Central Railroad Company household goods and a number of head of live stock, and on that day that company, in consideration of $100, then paid to it by plaintiff, executed to him a written contract by which it agreed to carry said goods and stock from Mayfield, Ky., to Harrison, Ark. The goods and stock were shipped in one car and were transported to Memphis, Tenn., by the Illinois Central Railroad Company, and thence to Seligman, Mo., by the St. Louis & San Francisco Railroad Company, and from that point they were carried by the defendant, the Missouri & North Arkansas Railroad Company, to Harrison, Ark., the place of destination. The plaintiff in his complaint alleged that the defendant on its line of railroad unnecessarily and unreasonably delayed the carriage of said stock and negligently failed to provide facilities for watering and feeding same, from which causes the stock was greatly damaged, and for these damages he seeks a recovery. The defendant, in its answer, alleged that the plaintiff had an agent in charge of the stock whose duty it was to feed and water the same. It further alleged that the plaintiff shipped the stock under a contract limiting the liability of the defendant in this: That in consideration of reduced rates the plaintiff agreed that as a condition precedent for any damages for delay, loss, or injury to the live stock, he would give a notice in writing of his claim in the manner as will hereinafter be more specifically set out, and on failure to comply with said condition of the agreement he should be barred from a recovery of any such claim; and defendant charged that he did not give such notice as he had contracted to do. The case was tried by the court sitting as a jury upon an agreed statement of facts, and a finding was made and judgment was given in favor of plaintiff for $125. From this agreed statement of facts it appears that the stock was damaged in the sum of $125 by reason of the delay in shipping which occurred on the line of defendant's railroad. The answer of the defendant presents two propositions, the determination of which will decide whether there is any valid defense to a recovery for these damages.
1. The defendant urges: That the plaintiff or his agent was by the terms of the contract given free transportation and under the testimony did accompany the stock; that by one of the provisions of the contract, in consideration of such free transportation, it was the duty of the plaintiff to feed and water the stock; and that thereby the defendant was exempted from liability for failure to water and feed the stock. But in its answer the defendant did not set forth the alleged provision of the contract exempting it from liability in this regard, and did not specifically plead such provision. "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." Kansas City, Pittsburg & Gulf Railroad Company v. Pace, 69 Ark. 256, 63 S. W. 62. It should in its pleadings not only refer to the contract, but also set forth the terms thereof specifically whereby its liability is limited. And in its answer the defendant has not set forth any provision of the contract that exempted it from liability by reason of the plaintiff or his agent accompanying the stock, and in its abstract it has not set forth any such provision. St. L., I. M. & Sou. R. Co. v. Randle, 85 Ark. 127, 107 S. W. 669; St. L. & N. Ark. Rd. Co. v. Wilson, 85 Ark. 257, 107 S. W. 978; 1 Hutchinson on Carriers (3d Ed.) § 444. But even though this defense had been properly pleaded, it is not sustained by the evidence. The agreed statement shows that the car was delayed and held at Eureka Springs, Ark., by the defendant for an unreasonable time, and that plaintiff requested defendant to give him permission to unload his stock so as to attend to their wants and save them from injury on account of the delay, and the defendant would not give him that permission. The plaintiff attempted to and did all he could to give the stock the attention that was necessary and which the stock required, and the defendant failed and refused to furnish him the opportunity and facilities for the performance of that duty. The defendant thereby became liable for the injury which thus resulted to the stock, and it was agreed in the statement of facts that the stock was damaged by reason of the delay that occurred on defendant's line at that place. The...
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