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

• Decision Date: 14 April 1888
• Citation: 8 S.W. 134
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> WEAKLY <I>et al.</I>
• Court: Arkansas Supreme Court

8 S.W. 134

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

v. WEAKLY et al.

Supreme Court of Arkansas.

April 14, 1888.

Appeal from circuit court, Nevada county; C. E. MITCHELL, Judge.

Action by Weakly & Gooch against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and appeal by defendant.

Dodge & Johnson, for appellant. Scott & Jones, for appellees.

BATTLE, J.

This is an action by Weakly & Gooch against the St. Louis, Iron Mountain & Southern Railway Company, to recover the value of a jack that died while in the course of transportation over defendant's railway. The facts, as shown by the testimony, were substantially as follows: On the 22d of December, 1884, plaintiffs shipped, at Nashville, Tenn., by the Nashville, Chattanooga & St. Louis Railway, a car-load of jacks consigned to themselves at Fort Worth, Tex. They were to be shipped by way of Memphis, over the Memphis & Little Rock Railroad to Little Rock, and thence over defendant's road to Texarkana. A written contract was entered into, whereby the Nashville, Chattanooga & St. Louis Railway Company agreed to transport the jacks to its freight station at McKenzie, ready to be delivered to the consignee, or his order, or to such company or carrier whose line might be considered a part of the route to the destination of the stock; and, in consideration of reduced rates of freight, it was agreed that, if any damage occurred by which the carrier was liable, the amount claimed should not exceed $300 for each jack injured. The stock, in charge of Gooch, one of the plaintiffs, arrived at Memphis on the morning of the 24th of December, 1884. At Memphis the river was then impassable on account of ice, and Gooch was delayed a day. The agent of the Memphis & Little Rock Railroad told him his stock could go forward on the Kansas City Railway at 9 o'clock the next morning; and on the next day, the 25th of December, he took his stock to the Kansas City Railway depot. The stock was driven on the cars a few moments before the train started. About this time a live-stock contract with the Kansas City, Fort Scott & Gulf and the Kansas City, Springfield & Memphis Railroad Company was presented to him for his signature, which he signed without reading, supposing it was a pass for himself. So much of it as is necessary to mention in this opinion is in the words and figures following:

                                                     "MEMPHIS STATION, December 25, 1884
                

"Agreement made between the Kansas City, Fort Scott & Gulf and Kansas City, Springfield & Memphis Railroad Companies, of the first part, and Weakly & Gooch, of the second part, witnesseth, that whereas, the Kansas City, Fort Scott & Gulf and Kansas City, Springfield & Memphis Railroad Companies, as common carriers, transport live-stock as per tariff, now, in consideration that said parties of the first part will transport, for the party of the second part, one (1) car-load of jacks from Memphis to Fort Worth, Tex., and there deliver to the Kansas City Stock-Yard Company, at the rate of seventy-six (76) dollars per car-load, the same being a special rate, lower than the regular rate mentioned in said tariff between said points, said party of the second part hereby relieves said parties of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be that of only a private carrier for hire. And the said party of the second part * * * hereby assumes all risk of injury which the animals, or either of them, shall receive in consequence of any of them being wild, unruly, or weak, or by maiming each other or themselves, or in consequence of heat or suffocation, or other ill effects of being crowded in the cars, * * * or of loss or damage from any other cause or thing not resulting from the negligence of the agents of the said parties of the first part. And the said party of the second part further agrees that he will load and unload said stock at his own risk, and feed, water, and attend to the same at his own expense and risk, while in the stock-yards of the parties of the first part awaiting shipment, and while on the cars, or at feeding or transfer points, or where it may be unloaded for any purpose. And it is further agreed that the parties of the second part will see that said stock is securely placed in the cars furnished, and that the cars are safely and properly fastened, so as to prevent the escape of said stock therefrom. * * * And it is further agreed that in no case shall the said railway companies be liable for a greater amount than fifty dollars per head of live-stock hereby shipped, and that all of the above rules and regulations for the transportation of live-stock shall be deemed an essential part of this contract. * * * The evidence that said party of the second part, after a full understanding thereof, assents to all the conditions of the forgoing contract, is his signature thereto.

                "Witness: L. L. CRISP.     E. A. THRUSTON, Agent of the Companies
                "(Pass one.)               WEAKLY & GOOCH, Shippers
                "Executed in duplicate."
                

No charges were demanded or paid by plaintiffs for transporting Gooch and the stock over the railroads, except $116 at Nashville. The stock was shipped over the Kansas City, Springfield & Memphis Railroad to Hoxie, a station on defendant's road 121 miles north of Little Rock. The station agent at Hoxie testified that the car-load of jacks was received by defendant at Hoxie over the Kansas City, Springfield & Memphis Railway under the contract of shipment made at Memphis, and was transported to Texarkana under the same contract. Gooch accompanied the stock, riding on the same train with them. The stock arrived at Little Rock in good condition. Shortly after leaving Little Rock, the conductor called on Gooch for his contract, and he handed him the Nashville contract, but the conductor refused to accept it, saying it did not pass him free. He then handed the conductor the contract signed at Memphis, which the conductor took, read, and returned, and permitted him to ride upon it. A short distance north of Prescott, Gooch got out to examine his stock, and found a tramp in the car with them; and, after the train had started, he told the conductor about seeing the tramp. When the train stopped at the next station, the tramp was taken out of the car; and was permitted to go into the caboose to warm, it being cold and sleeting. He had a stick. Over the objection of defendant, a witness was allowed to testify that when the tramp went into the caboose, and sat down by the stove to warm, he said, in the presence of the conductor: "It is d ___ n cold; and if it had not been for lopping them mules over the head, I would have froze to death." Gooch got out several times between Little Rock and Texarkana to look at his stock, and found them standing, and apparently all right. He did so after seeing the tramp among them, and a short time before they reached Texarkana, and discovered nothing wrong until they arrived at Texarkana, when he found one of the jacks lying dead in the middle of the car, with blood running out of his nose and mouth. He saw no marks of blows or bruises on the animal. Its skin was unbroken. He rode on the same train with the stock, according to his contract, from Hoxie to Texarkana, and testified he did not know the cause of the death. He testified that the dead jack was a fine animal, blooded, and of good pedigree, and was worth at Nashville $600, and at Fort Worth $800. When the other jacks reached Fort Worth, plaintiffs presented the contract signed at Memphis, and on it demanded and received their stock. Plaintiffs recovered judgment for $300, and defendant appealed. The declaration of the tramp was inadmissible. It was no part of the res gestæ, and appellant should not be affected by it.

Appellant asked and the court refused to instruct the jury as follows: "The court instructs the jury that if they find from the evidence that the plaintiff signed the bill of lading or contract of shipment in evidence, by which said car-load of jacks was carried from Memphis, Tenn., to Fort Worth, Tex., via Hoxie, it matters not if plaintiffs did not read or understand the same. The fact that they signed the same is conclusive, unless said signatures were obtained by fraud on the part of the carriers making the contract. It was plaintiffs' duty to know, and they were bound to know, what the contract contained and meant; and the effect of all its terms and conditions." But, at the instance of appellees, did instruct them as follows: "Unless the jury find from the evidence that the `Memphis contract,' so called in the evidence, was made by the defendant with the plaintiffs for a valuable consideration, they will disregard the same; and, if they find that the same was signed by the plaintiffs under the supposition alone that it was only for the purpose of having his jacks shipped from Memphis to a point on defendant's line of railway where the original or Nashville contract would have carried the same, they may entirely disregard said Memphis contract, unless they believe the injuries received by said jacks were received between Memphis and Little Rock." Appellant also asked and the court refused to instruct as follows: "If the jury find from the evidence that plaintiffs entered into a written contract at the city of Memphis with the Kansas City, Fort Scott & Gulf and the Kansas City, Springfield & Memphis Railroad Companies, by which it was agreed that said railroads should carry their car-load of jacks from Memphis to Fort Worth, Tex., at reduced rates as a private carrier, and, upon certain agreed values of said stock, upon a limited liability; that the defendant was and is a connecting carrier of said railroads, and that, to carry out the contract, it was necessary to carry said stock on defendant's railway; that said defendant received and carried said stock under said contract,—then, in that...