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

• Decision Date: 01 April 1905
• Citation: 86 S.W. 802
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. MARSHALL.
• Court: Arkansas Supreme Court

86 S.W. 802

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

Supreme Court of Arkansas.

April 1, 1905.

Appeal from Circuit Court, Lee County; Hance N. Hutton, Judge.

Action by D. B. Marshall against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The appellee, Marshall, desired to ship potatoes to Cleveland, Ohio, and applied to the station agent of the appellant railroad company at La Grange for a ventilator car for such shipment. He was told by the agent to let him know a few days in advance of the exact time when the car was wanted, and it would be furnished. Marshall gave notice on Friday that he would want the car on the following Tuesday, and the agent promised to have it ready on that date for the shipment. Marshall then commenced digging and hauling his potatoes so as to have the car load ready on that date. On Monday night a car was brought into La Grange for Marshall. It was a cattle car, in bad order, and too small. Marshall told the agent it would not do, and the agent told him that he would have another one brought from Helena the next day, which would be the kind wanted. The car arrived the next day, and was not a ventilator car, but a Canada cattle car, and the roof was broken and defective, and the floor covered with manure. Marshall called the attention of the agent to its condition and unfitness for the shipment, and asked for another car. The agent told him he could not get another car in less than two weeks. The potatoes were then ready for shipment, and the weather was warm, it being the 26th of June, and they would not keep. Marshall cleaned the floor and patched the roof as best he could, and then loaded his potatoes into the car, but after his work the roof and bottom of the car was still in bad condition. The potatoes were in good condition when shipped. The car was hauled by appellant to St. Louis, and then delivered to a connecting carrier, and it was hauled to Cleveland by the connecting carrier, and delivered to the consignee on the 1st of July. The potatoes were in bad order when received in Cleveland, and the uncontroverted evidence is that their damaged condition was due to the car having passed through rainstorms in transit, and, owing to the defective roof, the potatoes were rained upon, and that, with the manure in the bottom, caused them to rot. They were sold at once to the best advantage, and brought less than if they had reached Cleveland in good order. This suit is for the difference in the amount received and what would have been received had they been delivered in good order. The plaintiff, Marshall, recovered. If the Cleveland market is to govern, the verdict is supported by the evidence. If the La Grange market is to govern, there is a controversy as to whether the verdict is excessive. The appellant introduced the bill of lading, which is in usual form, and contains these clauses: "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...