Missouri & N. A. R. Co. v. Sneed

• Decision Date: 10 February 1908
• Citation: 107 S.W. 1182
• Parties: MISSOURI & N. A. R. CO. v. SNEED.
• Court: Arkansas Supreme Court

107 S.W. 1182

MISSOURI & N. A. R. CO. v. SNEED.

Supreme Court of Arkansas.

February 10, 1908.

Appeal from Circuit Court, Carroll County; J. S. Maples, Judge.

Action by S. Loss Sneed against the Missouri & North Arkansas Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Crump, Mitchell & Trimble, for appellant. James & Fuller, for appellee.

McCULLOCH, J.

This is an action to recover damages suffered by reason of the failure of the railroad company to furnish a car for a shipment of live stock from Alpena Pass, a station on its line of railroad, to St. Louis, Mo. It is alleged in the complaint: That on the 2d day of October, 1906, plaintiff made demand upon defendant's agent at the station named above for a stock car for a shipment of hogs, to be furnished on the 6th day of October. That, on the promise of the agent to furnish the car, plaintiff drove 224 hogs to the station, and tendered them for shipment, and placed them in stock pens or yards kept at that place by the company for the reception of stock for shipment. That the defendant neglected and refused to furnish the car until the 3d day of November, plaintiff in the meantime having made daily demand for the car. That by reason of the failure to furnish the car for shipment of the hogs plaintiff sustained damage in the sum of $789.30, as follows: For 38 head of hogs that died of cholera, contracted in the pens while awaiting shipment, by reason of close confinement, 28 head of which died before shipment and 10 while in transit; for depreciation in market value during the period of delay of the hogs which survived; for loss of weight caused by the delay; and for expense of keeping the hogs while awaiting shipment.

Defendant filed its answer, admitting the demand for the car on the day named, and the tender of the hogs for shipment, and the failure to furnish the car until the 3d day of November. As reason for failure to deliver the car at an earlier date, it is alleged in the answer that the defendant was engaged in interstate traffic, and that at the time covered by the period of delay there was an unprecedented and unexpected demand for cars, which prevented it from furnishing cars to the plaintiff at an earlier date. The answer also sets forth the fact that the hogs were shipped under a contract or bill of lading limiting the liability of the company, and providing that the shipper should give notice of claim of damages immediately upon arrival of consignment at the place of destination. The answer also alleged that the plaintiff was guilty of negligence in placing the hogs in close confinement in the stock pen, and keeping them there, subject to disease caused by other hogs having been kept there. The answer also contains the following paragraphs, to which the court sustained a demurrer, and exceptions to the rulings were duly noted:

"(4) The defendant, further answering, says that up to the 14th day of June, 1906, it held no interest whatever in said railroad, but that at that time entire interest of the St. Louis & North Arkansas Railroad Company, by an order and decree of the United States Circuit Court for the Harrison Division of the Western District of Arkansas, was by W. F. Mitchell, as special commissioner in chancery in said court, sold and conveyed to John Scullin and others, committee, and the same was transferred to the said committee, and afterwards by said committee transferred to the said defendant, and it says that at the time of its acquiring said railroad that there was not a live-stock car owned by it, and that this defendant, when it acquired the property of said St. Louis & North Arkansas Railroad Company, did not receive from it a single car of any kind or character. It further states that it has not to the present time been able to procure any cars of its own, and has been wholly dependent on the Frisco Railroad to furnish its stock cars, and that by reason of the unprecedented demand for cars, as aforesaid, which was general west of the Mississippi river, the said Frisco Railroad was unable to furnish it cars to accommodate its patrons when cars for the shipment of live stock were demanded by them, and that for these reasons and none other that the defendant failed to furnish the car as aforesaid.

"(5) The defendant, further answering, says that the plaintiff ought not to maintain this action, because it says that at the time the said plaintiff made said shipment of hogs this defendant had two rates on live stock, one being a reduced rate, by which the company limited its liabilities, and the...