St. Louis, I. M. & S. Ry. Co. v. Dunn & Stewart

• Decision Date: 04 April 1910
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DUNN & STEWART.
• Court: Arkansas Supreme Court

127 S.W. 464

ST. LOUIS, I. M. & S. RY. CO. v. DUNN & STEWART.

Supreme Court of Arkansas.

April 4, 1910.

Appeal from Circuit Court, Ouachita County; Geo. W. Hays, Judge.

Action by Dunn & Stewart against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

The additional instruction referred to in the opinion was as follows: "The court instructs the jury that the burden of proof in this case rests with the plaintiffs, and before they can recover they must show by a fair preponderance of the proof that the stock shipped was injured by the negligence of the St. Louis, Iron Mountain & Southern Railroad Company in the manner set out in their complaint and the extent of the injury, and that they complied with the provisions of the contract by giving the notice required therein when the stock arrived at Pine Bluff."

H. B. Dunn and Bob Stewart, partners under the name of Dunn & Stewart, brought a suit against the St. Louis, Iron Mountain & Southern Railway Company for injuries to eight horses which were contained in a car load shipped from Kansas City, Mo., to Pine Bluff, Ark. It was alleged that the horses were shipped under a contract by which appellant contracted to deliver the horses at Pine Bluff, Ark., to be carried thence to Hampton, Ark.; that appellant negligently and carelessly "hitched the car load of horses to a switch engine, at Coffeyville, Kan., and ran same back and forth in making up the train for a period of two hours or longer, and that during that time appellee's horses were knocked down by the striking of the cars against each other; that the horses tramped upon and bruised each other, and by this negligent handling of the horses they were injured, and appellees damaged in the sum of $255." Appellant answering denied all the material allegations of the complaint, and set up that the shipment of horses and stock mentioned in the complaint from Kansas City Stock Yards, Kansas City, Mo., if a shipment was made at all, was by, through, and under a written contract, by the terms of which on account of reduced rates appellees assumed certain risks in said written shipper's contract, mentioned and specified and agreed therein to give notice to some agent of the company within one day after said stock had arrived at the destination, which appellees failed entirely to do, and failed entirely to comply with any of the conditions in said contract contained on account of said reduced rates and assumed risks. The appellees replied to the answer of appellant, setting up waiver.

The contract under which the horses were shipped among other things provided: "That, for the considerations and the mutual covenants and conditions herein contained, the said first party will transport for the said second party the live stock described below, and the parties in charge thereof, as hereinafter provided, viz.: One (1) car, said to contain twenty-seven (27) head of horses, consigned to Dunn & Stewart, Pine Bluff, Ark., from Kansas City station to destination, if on this railway or its leased or operated lines, and there delivered to consignee or to the proper junction, if the destination is on another road, and there delivered to a connecting common carrier, c/o R. I. at the rate of * * * per f. o. b. subject to minimum weights and lengths of cars provided for in tariff, said rate being less than the rate charged for shipments transported at carrier's risk, for which reduced rate and other considerations it is mutually agreed between the parties hereto as follows: * * * Fifth. That as a condition precedent to the recovery of any damages for any loss or injury to live stock covered by this contract, for any cause, including delays, the second party will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated; and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims, and to any suit or action brought thereon."

There was testimony which tended to prove that the horses of appellees were injured through the negligence of appellant at Coffeyville, Kan., in the manner alleged in the complaint and that appellees were damaged thereby in a sum that warranted the amount of the verdict returned by the jury. There was testimony tending to prove that the car load of horses were waybilled to Hampton, Ark. The freight was paid at Hampton, Ark., for the shipment from Kansas City, Mo. Although the written contract specified "1 car said to contain 27 head of horses consigned to Dunn & Stewart, Pine Bluff, Ark.," the testimony showed that this was a mistake, and that the car was really consigned to Dunn & Stewart at Hampton, Ark. The trainbook of the freight conductor who handled the train on which this car load of horses was shipped shows as follows: "Missouri Pacific 5324, 27 Horses, Harrell, Arkansas, via Cotton Belt at Pine Bluff, loaded 6 a. m. 9-24 at 829, that is Argenta. Dunn & Stewart, Harrell, Arkansas." This car No. 5324 was transported September 24, 1908, and appellee Stewart testified that he received a car that day, and that was the only car of horses he received from Kansas City; that Hampton was the only place to which the car was consigned.

The testimony of one of the appellees who made the contract of shipment with appellant shows that the horses were billed through to Hampton, Ark. It is clear that "Harrell," Ark., as shown by the train record supra, really meant Hampton, Ark. The witness says: "They won't give you a contract further than their road, but they will...