St. Louis, I. M. & S. Ry. Co. v. Renfroe

• Decision Date: 11 March 1907
• Citation: 100 S.W. 889
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. RENFROE.
• Court: Arkansas Supreme Court

100 S.W. 889

ST. LOUIS, I. M. & S. RY. CO. v. RENFROE.

Supreme Court of Arkansas.

March 11, 1907.

Appeal from Circuit Court, Crawford County; J. H. Evans, Judge.

Action by T. H. Renfroe against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was a suit begun in the Crawford circuit court by the appellees to recover damages, which, it was claimed, they had suffered by reason of the failure of the St. Louis Iron Mountain & Southern Railway Company to keep properly iced a refrigerator car load of berries which, they allege, were shipped by themselves from Alma, Ark., to Kansas City, Mo.

Appellees alleged that the St. Louis, Iron Mountain & Southern Railway Company "was on the 27th day of April, 1905, the lessee, operator, and manager of a line of railway from Alma, Ark., to Kansas City, Mo." Appellees then alleged that they delivered to appellant 585 crates of strawberries in good condition, which appellant received and agreed to transport from Alma, Ark., to Kansas City, Mo., in consideration of the sum of $107.36; and appellees alleged that in consideration of the further sum of $50 appellant agreed and undertook to keep the car in which the strawberries were loaded sufficiently iced to keep it at a temperature sufficiently cold to preserve and keep said strawberries in a merchantable condition so that they would be marketable in Kansas City, Mo. Appellees then allege that the strawberries would have netted them, after paying all expenses for transportation, icing, and commissions for selling, the sum of $1,158.89, if same had reached Kansas City in merchantable condition. Appellees allege that appellant neglected, failed, and refused to keep said car iced as it agreed to do, and that by reason of its failure the strawberries became overheated in the car, and thereby became soft, mushy, mouldy, and unmarketable in Kansas City, Mo.; that they netted appellees $369.35 in their unsalable condition, and that appellees were damaged by reason of the negligence and carelessness as aforesaid $789, for which sum they asked judgment.

Appellant denied all the material allegations of the complaint, and set up the defense of contributory negligence in shipping berries unfit for shipment, and in not discovering defective condition of car in respect to drain pipes if it was defective, and in not diligently placing berries on market after their arrival at Kansas City. The defense of contributory negligence, however, is not urged here. The bill of lading evidencing the contract of shipment was attached to the complaint as an exhibit. It contained the following: "And it is further especially understood that, for all loss or damage occurring in the transit of said property, the legal remedy shall be against the particular carrier only in whose custody the said property may actually be at the time of the happening thereof — it being understood that the St. Louis, Iron Mountain & Southern Railway Company's leased, operated and independent lines, in receiving the said property to be forwarded as aforesaid, assumes no other responsibility for its safety or safe carriage than may be incurred on its own road." The bill of lading also recited that the strawberries were received to be forwarded to Kansas City, Mo. Across the face of the bill of lading were written the words and figures: "Refrigerator $50.00." The bill of lading was issued to T. H. Renfroe, one of the appellees, at Alma, Ark., by the agent of appellant.

Appellee adduced evidence tending to prove that on the 27th of April, 1905, an American Refrigerator Transit car on appellant's road at Alma, Ark., was loaded with strawberries for Renfroe, the shipper, who sold same to the other appellees, Jones and Taylor, while in transit. The strawberries were in good, merchantable condition when loaded, and were properly loaded. It was a hot day when the car was loaded. The car left Alma a little before sundown on the 27th of April. It had remained at Alma from about 3:30 o'clock p. m. the day previous. The car was sealed under the directions of appellant's agent at Alma. While the berries were being loaded it was noticed that the water was running out of the corners of the car. Witnesses testified that the water was passing out of the car all the afternoon; that it ran out in a stream; that the car was not cold on the inside. It was shown that the car left Alma at 6:23 o'clock p. m., and arrived at Van Buren 7:06 p. m., and left Van Buren at 11:20 p. m. for Kansas City on April 27, 1905. The car was re-iced at Van Buren, but not until it had stood for nearly three hours. When the car was inspected at Kansas City at about 6 p. m., April 28, 1905, the interior was found to be extremely warm. The berries were soft and beginning to mould; none of them were in merchantable condition. The temperature in the car was about 65 or 75 degrees. If the car had been kept well iced all the time, the berries would have arrived in Kansas City in good condition.

James A. Shibley, a witness for the appellant, testified that he was working for the American Refrigerator Transit Company; that he had no connection with the Iron Mountain Railway Company; that the icing of the American Refrigerator Transit Company's cars was a duty which devolved upon the American Refrigerator Transit Company; that he superintended the icing of the car complained of in this suit; that the car was iced before it left Van Buren to be loaded at Alma, and that, after being loaded at Alma, it was returned to Van Buren and re-iced at that point before starting on its journey northward; that he examined the car and found it in good condition; that the bills for icing were rendered to the American Refrigerator Transit Company, whose duty it was to attend to the icing of the car and to turning it over to the...