Pine Bluff & Arkansas River Railway Co. v. McKenzie

• Citation: 86 S.W. 834,75 Ark. 100
• Parties: PINE BLUFF & ARKANSAS RIVER RAILWAY COMPANY v. MCKENZIE
• Decision Date: 15 April 1905
• Court: Arkansas Supreme Court

86 S.W. 834

75 Ark. 100

PINE BLUFF & ARKANSAS RIVER RAILWAY COMPANY v. MCKENZIE

Supreme Court of Arkansas

April 15, 1905

Appeal from Jefferson Circuit Court, ANTONIO B. GRACE, Judge.

Affirmed.

Judgment affirmed.

S. H West and Bridges & Wooldridge, for appellant.

The court erred in excluding the testimony of H. E. Martin, as to whose land the spur track was on. Hutch. Car. § 94. The delivery must have been complete. 56 Ark. 288; Hutch. Car. § 82. Usage is legal evidence of custom. 17 Ark. 428; 58 Ark. 129; 29 Am. & Eng. Enc. Law, 412.

W. T Young and M. Danaher, for appellee.

Delivery to appellant was complete. Hutch. Car. §§ 99, 100; 42 Tex. 467; 29 Am. & Eng. Enc. Law, 410.

OPINION

BATTLE, J.

B. F McKenzie sued the Pine Bluff & Arkansas River Railway Company for the value of one carload of cotton and of one carload of cotton seed, and interest thereon. He alleged in his complaint that, on the 29th day of October, 1901, he delivered to the defendant, at L. W. Clement's Gin, for immediate transportation, one carload of cotton, of the value of $ 1,227.60, to be shipped to Memphis, Tenn., and one carload of cotton seed, of the value of $ 300, to be shipped to Little Rock, Ark.; that said defendant accepted the cotton and seed, and, in consideration of a certain sum to be paid, undertook to transport and deliver the same at the places mentioned, and wholly failed to do so; and that thereby the cotton and seed were entirely lost; and asked for judgment for the value thereof and interest thereon. The defendant answered, and denied these allegations.

The defendant constructed a switch or sidetrack to its railway at a place called Clement's Gin, upon which it received cotton and cotton seed for transportation. When any one wanted a car for shipment of his cotton or seed from that place, he would request the defendant to furnish the same, at the same time making known its destination, and it would do so, leaving the cars on the sidetrack to be loaded by the shipper, and when this was done, would move the cars on the way to their destination by the first train passing after they were loaded. There was some controversy or conflict of testimony as to the custom of the defendant in respect to the time and manner it delivered bills of lading for the freight. But, be this as it may, the undisputed evidence shows that it frequently delivered them after the goods had been shipped, and that they were not conditions precedent to the shipment.

Plaintiff requested the defendant to furnish him with two cars at Clement's Gin, one for cotton to be shipped to Memphis, Tenn., and the other for cotton seed to be shipped to Little Rock, Ark. On the 29th of October, 1901, the two cars were left by the defendant on the sidetrack at the place designated; and on that day they were loaded by the plaintiff, one with cotton and the other with seed; and plaintiff notified the conductor of defendant of that fact, and he promised to take them out on the next morning. About 3 o'clock on the next morning the cars and contents were destroyed by fire. The cotton and seed were of the value alleged in the complaint.

The court instructed the jury, at the request of the plaintiff, as follows:

"The liability of a common carrier commences at the time the goods to be shipped are received by it for transportation, and not from the time of the issuance of a bill of lading only. When the shipper surrenders the entire custody of his goods to the carrier for immediate transportation, and the carrier so accepts them, that instant the liability of a common carrier begins. When this occurs, the delivery is complete, and it matters not how long or for what cause the carrier may delay putting the goods in transit; if a loss is sustained not occasioned by the act of God or the public enemy, the carrier is responsible.

"Therefore if the jury believe from the evidence that the plaintiff ordered two cars from the defendant to be placed for loading at Clement's Gin, one to be loaded with cotton for...