Missouri Pacific Railroad Co. v. Martindale
| Decision Date | 09 June 1919 |
| Docket Number | 24 |
| Citation | 213 S.W. 777,139 Ark. 143 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY v. MARTINDALE |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Geo. R. Haynie, Judge; affirmed.
Judgment affirmed.
E. B Kinsworthy and R. E. Wiley, for appellant.
1. There was error in plaintiff's first instruction, and the error was not cured in any other. It fails to require the jury to find a causal connection between the unreasonable delay, if any, and the killing and injuries to the cattle and not only is there no testimony from which the jury could infer such causal connection, but the affirmative testimony shows there was no such causal connection for it is undisputed in the evidence that there was no delay in transportation from Prescott to Hoxie and that the train was handled in ordinary and usual time as per schedule with no stops except to feed and rest, that there was no delay reasonable or unreasonable, up to the time the train reached Hoxie. The evidence shows also that the principal part of the damage was done when the train reached Hoxie. The burden of proof was on plaintiff to show negligent delay. Where the action is grounded on delay in transportation, plaintiff must prove delay in transportation and that it was negligent. 174 S.W. 1165; 112 Ark. 110-114; 103 Id. 522; Ib. 522.
It was error to strike out of appellant's second request the language as to the burden of proof as to the delay and negligence. Cases supra.
2. The testimony is not sufficient to sustain the verdict, no unreasonable delay is shown and the case was submitted solely on the ground of unreasonable delay, and that leaves the verdict without evidence to support it.
3. Defendant's request No. 6 should have been granted. It told the jury that the provision in the written contract which required plaintiff's written notice regarding loss or injury in time to enable defendant's agent to examine the stock before it was removed from the unloading pen or mingled with other stock was reasonable and binding, and as plaintiff did not give such notice the verdict should be for defendant as to all loss or damages on account of injuries and shrinkage in weight. This provision is reasonable and binding and failure to comply with it is a valid defense. 63 Ark. 332; 101 Id. 436; 127 Id. 261; 241 U.S. 190. The burden of proof is upon plaintiff to show that this provision was complied with. 63 Ark. 332; 82 Id. 353. There is no proof that such notice was given. The claim itself shows as also other evidence that the cattle were sold and delivered to the buyers on November 24, three days prior to the filing of the claim. If the provision is binding, and it is, it was error to refuse this instruction. Section 20 of the Interstate Commerce Act, 38 Stat. at Large 1196, 4 Fed. Stat. Anno. (2 ed.), p. 507, does not apply or refer to contracts for notice of loss or injury. There is a distinction between the "notice of claim" mentioned in the statute and the "notice regarding loss on injury" provided in the contract. 101 Ark. 436.
4. Request No. 7 for defendant should have been given, and it was error to refuse it, as written notice was required to be given within 91 days after loss or injury. This requirement is strictly within the latest legislation. See section 20, quoted ante Cummins Act, 38 U. S. Stat. at Large, 1196.
W. P. Murrah and McRae & Tompkins, for appellee.
1. The jury by their verdict found that there was unreasonable delay and that the cattle arrived in damaged condition and that the railroad had not explained the delay and had not shown that it was not negligent. Instruction No. 1 given for plaintiff was really too favorable to appellant. There was no error in giving it nor in refusing to amend it. The dead cattle proved that there was a failure to deliver safely. 100 Ark. 269-279; 1 Hutchinson on Carriers, 265, etc. After damages to the goods has been established the burden is on the carrier to show it was caused by one of the perils which exempted the carrier. 194 U.S. 427.
The case in 174 S.W. 1165 was decided before the passage of the Cummins amendment, March 4, 1915, and the case is not in point, because it holds that a negligent delay must be proved by the shipper to recover for shrinkage and condition of the stock after arrival. In this case the damages claimed were those claimed in transit, see 112 Ark. 110, where there is not one word to the effect that plaintiff must show that the delay was negligent. See also as to the burden, 103 Ark. 522.
As to notice, none was required. See Cummins Amendment, Barnes, Fed. Code, § 7936, 39 Stat. 441, Act August 9, 1916.
There are no errors in the instructions, and the evidence sustains the verdict and the judgment should be affirmed.
Appellee instituted suit against appellant in the Nevada Circuit Court to recover damages to a car load of cattle shipped by him from Prescott, Arkansas, to his consignee, Woodson-Fennewald Commission Company, at National Stock Yards, Illinois, to be sold on the market. It was alleged in the complaint that the shipment was made under a contract binding appellant to safely carry and deliver the cattle to the consignee, but, upon reaching their destination, it was discovered that fifteen head were dead, three crippled, and a number bruised, to the damage of appellee in the sum of $ 880; that, by the negligent delay of appellant in transportation, appellee was damaged in the sum of $ 131 on account of extra feeding and shrinkage in weight of cattle; that appellee gave due notice of his claim for damages to appellant.
Appellant filed answer, denying all material allegations in the complaint, and invoked, by way of further defense, failure of appellee to notify it, in writing, of the loss or injury in time to examine the cattle before being removed from the unloading pens or permitted to mingle with other cattle, or to give notice of an intention to file a claim for loss or damage within ninety-one days, or to file a verified, itemized claim within 125 days, according to the requirement of section 7 of the contract of shipment.
The cause was submitted to a jury, upon the pleadings, evidence and instructions of the court, and a verdict returned and judgment rendered for $ 750, from which judgment an appeal has been duly prosecuted to this court.
The undisputed evidence disclosed that forty-nine head of cattle were shipped at 12:30 P. M., on November 20, 1917, over appellant's railroad, by appellee, from Prescott to his consignee at National Stock Yards, Illinois, under contract with appellant to safely carry and deliver them; that they reached their destination at 1:10 P. M., on November 23, 1917, too late for the market, and consequently held over until the 24th of November for sale; that on the 24th, the market was lower than on either the 22d or 23d; that when they arrived at National Stock Yards, fifteen of them were dead, three crippled, six bruised, and the others depreciated in value by reason of shrinkage, etc.; that the following claim for damages was presented to the company on the 27th day of November, 1917, and bears the rubber stamp of the Missouri Pacific freight claim department of date November 28, 1917, towit:
To 12 average cattle 7,560 lbs. at av. pr. $ 6.80
$ 514.08
Less amount of deads sold for
46.15
$ 467.93
To 3 dead yearlings, 900 lbs. av. pr. 6c.
$ 54.00
Less amount deads brought
7.00
$ 47.00
To one crip. ylg. 300 lbs. at 6c
18.00
To 2 crip. steers, 1,260 lbs. at $ 6.80
85.68
$ 103.68
Less amount crips. brought
21.00
82.68
To $ 1.00 a cwt. depreciation on 14,000
lbs. cattle
140.00
Total
$ 737.61"
That the natural shrinkage of cattle in transit was 4 per cent. of their weight the first day, 3 per cent. the second day and 2 per cent. each day thereafter; that the cattle were in good condition when loaded at Prescott, and that appellee accompanied them as far as North Little Rock, where they were unloaded and fed, at which time he returned to his home; that the cattle were properly loaded at North Little Rock and again unloaded and reloaded at Hoxie in order to get up about ten head that were then down and being trampled on by the other cattle in the car; that three bulls were contained in the shipment and that it was customary to tie them, which custom was complied with at Prescott, North Little Rock and Hoxie; that afterwards it was discovered that the bulls were untied and remained untied until the car reached its destination. The evidence on the part of appellee tended to show that the average schedule time for the transportation of cattle from Prescott to the stock yards in question was about forty-two hours, and that there was an unreasonable delay in the transportation of this particular car. The evidence on the part of appellan...
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