Railway Co. v. Neel
| Decision Date | 04 June 1892 |
| Parties | RAILWAY COMPANY v. NEEL |
| Court | Arkansas Supreme Court |
APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.
Suit by C. M. Neel against the St. Louis, Arkansas & Texas Railway Co.
The complaint alleges two causes of action, viz:
(1.) That plaintiff built a railroad from Rob Roy, a station on defendant's line of railway distant seven miles from Pine Bluff, to Swan Lake, in Jefferson county, for the purpose of transporting freight and passengers to and from Pine Bluff. That the railway so built was incorporated as the Pine Bluff & Swan Lake Railway Co., and during the year 1886 was run and operated under said name, the plaintiff being president and chief stockholder. That, on the 7th day of July, 1886, the Pine Bluff & Swan Lake Co. entered into a contract with the defendant whereby it was agreed that the former should run its own trains over the latter's track from Rob Roy to Pine Bluff. That at this time the defendant and the Pine Bluff & Swan Lake Railway Company were both narrow gauge roads; and as defendant contemplated widening its gauge, it was agreed that when the change was made, it should maintain a third rail on its track between Rob Roy & Pine Bluff, so as to allow the passage of trains of the Pine Bluff & Swan Lake Railway between Pine Bluff' and Rob Roy. That the contract was to be and remain in full force until July 7 1887, and that, by said contract, the Pine Bluff & Swan Lake Railway Co. and defendant become partners in the transportation of passengers and freight from Swan Lake to Pine Bluff, and operated their respective lines of railway jointly and divided their receipts for freight and passengers from the date of the execution of the said contract until October 18, 1886, when defendant tore up its rails and widened its gauge, but neglected to put in the third rail as stipulated in the contract, and thereby prevented the transportation of freight and passengers to Pine Bluff along the line of said Pine Bluff & Swan Lake Railway until Dec 22, 1886. Plaintiff further states that he, at divers times between the 18th day of October and the 17th day of November 1886, delivered his own cotton, amounting to 143 bales, to the Pine Bluff & Swan Lake Railway Company for shipment to himself at Pine Bluff and took bills of lading therefor that, in order to pay for money and supplies advanced by him divers persons delivered 320 bales of cotton to the said Pine Bluff & Swan Lake Railway Company consigned to plaintiff at Pine Bluff, and took bills of lading therefor; that plaintiff delivered to the said Pine Bluff & Swan Lake Railway Company for shipment to himself at Pine Bluff, about 200 tons of cotton seed and took bills of lading therefor. But that, by reason of defendant company violating its said contract and refusing to allow the trains of the Pine Bluff & Swan Lake Railway Company to pass over its road, said cotton was carried to Rob Roy and there thrown off and exposed to the rain and mud, and was damaged in the sum of $ 10 per bale, and the cotton seed of the value of $ 8 per ton was entirely lost. Whereby plaintiff was damaged in the sum of $ 6,230.
(2.) As a second cause of action plaintiff alleges that, some time between Oct. 18 and Nov. 17, 1886, plaintiff delivered to defendant at Rob Roy station 623 bales of cotton and 300 tons of cotton seed, worth $ 8 per ton, consigned to plaintiff at Pine Bluff and took bills of lading therefor; that defendant let said cotton and cotton seed lie in the mud and exposed to the rain at Rob Roy until said cotton was damaged $ 10 per bale and the cotton seed entirely lost, and plaintiff thereby was damaged in the sum of $ 8,630.
The following is the agreement referred to in the complaint:
B.
C.
The defendant's answer put in issue all the material allegations of the complaint. The jury, upon the evidence and under the court's instructions, found for the plaintiff and assessed his damages at $ 10 per bale for 623 bales of cotton with interest thereon, and also damages for loss of 300 tons of cotton seed at $ 8 per ton with interest. Defendant has appealed. So much of the evidence as is necessary to its proper understanding is stated in the opinion.
Judgment reversed and cause remanded.
J. M. & J. G. Taylor and Sam. H. West for appellant.
1. It was error to admit evidence as to the contract between the appellant and the Swan Lake railroad. The contract did not constitute a partnership, nor make the Swan Lake road the agent of appellant to receive freight on its behalf. 139 U.S. 223; 104 U.S. 146; 42 Ark. 465; Bates on Part. sec. 66 and note.
2. The appellant was not responsible for damages to the cotton prior to its receipt, nor subsequent to its attachment. It was incumbent on plaintiff to prove that the damage was caused during the period the cotton was delayed. 43 Mich. 609.
3. But the delay was not the cause of the damage; the entire damage was caused by the acts, fault and negligence of the servants and agents of plaintiff. 63 Tex. 322.
4. Appellant not responsible until actual delivery to the railroad. Hutchinson, Car. secs. 760, 750.
N. T. White, House & Cantrell, S.W. Williams and W. P. Grace for appellee.
1. By the contract of July 7th, both railroad companies were bound jointly and severally to carry freight and passengers as common carriers from Rob Roy to Pine Bluff. Hutch. on Car. sec. 158; ib. 159-160; 11 Wend. 571; 78 N.C. 294; 7 Rich. (S. C.) Law, 202; 14 Pick. 289; 7 Hill (N. Y.), 292; 3 Duval (Ky.), 4; 112 id. 180; 48 N.H. 339-
2. If the railroad received the cotton and seed for transportation, and were damaged thereafter while in its possession, it is certainly liable. Hutchinson on Car secs. 64-89. The evidence is ample on this point.
3....
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