St. Louis And San Francisco Railroad Company v. Pearce
| Decision Date | 15 April 1907 |
| Citation | 101 S.W. 763,82 Ark. 339 |
| Parties | ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY v. PEARCE |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.
Reversed and remanded.
L. F Parker and B. R. Davidson, for appellant.
1. It is undisputed that the rate sheets were posted as required by statute, Kirby's Digest, §§ 6802-3-9; and, such being the case, the agent was under no obligation to tender to the shipper two different contracts. 49 Am. & Eng. R. Cas 168. It is not necessary for the carrier to tell the shipper that it has two rates when that fact is plainly stated in the contract which he signs, without making inquiry about rates. In the absence of fraud practiced upon him the shipper is concluded by the provisions of the contract he signs and accepts, though he did not read it. 42 Am. & Eng. R. Cas 787; 139 F. 127; 24 Am. & Eng. R. Cas., N. S., 761; 50 Ark. 397; 71 Ark. 185; 113 F. 91; Id. 92; 3 Am. & Eng. R. Cas., N. S., 290.
2. Under the contracts in evidence, the burden was upon plaintiffs to show that the stock had been damaged by the defendant company. The presumption is that the injury was done by the delivering carrier, and the court should have so instructed the jury. 39 Ark. 523; 40 Ark. 375; 44 Ark. 208; 52 Ark. 226; 50 Ark. 397; 73 Ark. 112.
3. It was error to permit witness Pearce to testify from a newspaper report as to the decline in the market value of hogs in East St. Louis. 60 N.Y. 469; Underhill on Ev. 293.
4. The stipulation in the contract that plaintiffs would give notice before the stock was sold or mingled with other stock if they claimed any damages was reasonable and binding, and the court should have so instructed the jury. 63 Ark. 331; 67 Ark. 407; 1 Hutchinson on Car. § 442; 4 Elliott, Railroads, § 1412.
5. The agreement to waive any right for damages accrued prior to the loading of the hogs and signing of the contract was valid and binding. 21 S.W. 80.
J. A. Rice, for appellant.
The plaintiffs, Pearce & Puckett, sued the railroad company to recover damages to a shipment of live stock caused by alleged negligence in failure to promptly transport and deliver at the destination. They exhibited with their complaint a contract of carriage with the company containing, among other things, a stipulation to the effect that no action against the company should be maintained unless the same should be commenced within six months next after the cause of action should accrue. This action was commenced more than six months after the cause of action accrued, and the defendant pleaded the delay in bar of plaintiff's right to maintain the action.
To avoid the effect of the delay, the plaintiffs introduced in evidence a letter addressed to them by defendant's authorized agent within the period of limitation requesting them to wait a few days until the claim could be investigated. It is, however, undisputed that on March 17, 1903, which was one month and twenty days before the expiration of the period of limitation, defendant's agent notified plaintiffs that the claim was disallowed and liability denied. They admitted that the notice was received.
The defendant requested the court to give the following, among other instructions, which request was refused:
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