Payne v. Mallory

• Decision Date: 02 May 1921
• Docket Number: 309
• Citation: 230 S.W. 270,148 Ark. 431
• Parties: PAYNE v. MALLORY
• Court: Arkansas Supreme Court

230 S.W. 270

148 Ark. 431

PAYNE v. MALLORY

No. 309

Supreme Court of Arkansas

May 2, 1921

Appeal from Carroll Circuit Court, Western District; W. A. Dickson Judge; affirmed.

Affirmed.

Shouse & Rowland, for appellant.

The court erred in overruling appellant's demurrer and refusing to give the peremptory instruction asked by defendant. No negligence was alleged or proved. The instructions state the law correctly, and there is no evidence to support a verdict for any sum. 1 Hutch. on Carriers, § 510; 83 S.W. 20; Kirby's Digest, § 6804; 77 Ark. 357; 79 Id. 59. See, also, 64 Ark 271; 83 S.W. 20. Under the law supra appellee failed to make out a case and a verdict should have been directed.

C. A Fuller, for appellee.

1. It is the duty of a railroad company to furnish suitable pens for keeping stock and facilities for feeding and watering them, and failing to do so renders it liable. Michie on Carriers, §§ 1757-8, 1784; 82 Ark. 253; 73 Id. 112; 101 Id. 289.

2. The evidence fully sustains the verdict.

OPINION

HUMPHREYS, J.

Appellees instituted suit against appellant in the circuit court, Western District of Carroll County, to recover damages in the total sum of $ 696.62, as per itemized statement incorporated in the complaint, on account of the alleged negligence of appellant in failing and refusing to ship two cars of stock on the 22d day of November, 1919, or to deliver same upon the Kansas City market within a reasonable time after said date.

A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, to which ruling of the court appellant objected and excepted.

Appellant, reserving its exceptions to the ruling of the court on the demurrer, filed an answer, denying the material allegations of the complaint.

The cause then proceeded to a hearing, and at the conclusion of the evidence appellant requested a peremptory instruction directing a verdict in its favor. The court refused to give the instruction, to which ruling appellant objected and excepted. The cause was then submitted to the jury upon the pleadings, evidence and instructions of the court, resulting in a verdict and judgment against appellant for $ 475, from which an appeal has been duly prosecuted to this court.

Appellant first contends that the court committed reversible error in overruling the demurrer to the complaint. It is asserted that no fact of negligence is alleged in the complaint, the only allegation being that when appellees "arrived at the stockyards it was dark and the stock pens were all full of other stock, and there was no place available in which to drive their stock for shipment." Appellant argues that common carriers can not be held in damages for a failure to furnish shipping facilities unless it be alleged and shown that the facilities furnished were inadequate for the accommodation of all normal business at the shipping station, and that the allegation in the complaint that the stock pens were all full of other stock when appellees' stock arrived was insufficient because it failed to allege that the accommodations were insufficient to accommodate the normal business at the Eureka Springs station. We deem it unnecessary to pass upon this question as, in our opinion, the complaint sufficiently alleged other facts of negligence upon which to base a recovery. The complaint, in substance, alleged that appellees, on Tuesday before Saturday, November 22, 1919, engaged two cars to ship a car of cattle and a car of mixed stock on the 22d day of said month; that, relying upon the promise of appellant to furnish the cars, they purchased the cattle and drove them a distance of eighteen miles to the shipping pens of appellant at its station in Eureka Springs, arriving with the cattle after dark; that the stock pens and grounds around them were filled with cattle and hogs, and that they were advised by appellant to take their cattle across the track and a public road into an adjoining field until they could be loaded; that appellees were unable to get their stock out of the field across the railroad track and public road into the stock pens after they were vacated of the other stock therein on account of the darkness of the night; that they were required to keep their stock at the station several days before the same were shipped; that, by reason of the failure of appellant to deliver said stock upon the market at a reasonable time after November 22, 1919, appellees were damaged, on account of extra expense, shrinkage in weight of cattle, downward break in the market and other causes, in the total sum of $ 696.62. The following is a verbatim copy of one of the allegations in the complaint: "By reason of the...