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

• Decision Date: 04 May 1908
• Citation: 110 S.W. 593
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. OZIER.
• Court: Arkansas Supreme Court

Page 593

110 S.W. 593

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

Supreme Court of Arkansas.

May 4, 1908.

Appeal from Circuit Court, Boone County; Brice B. Hudgins, Judge.

Action by William Ozier against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. M. Mehaffy and J. E. Williams, for appellant. Crump, Mitchell & Crump and Frank Pace, for appellee.

McCULLOCH, J.

This is an action instituted by appellee against appellant railway company to recover damages resulting from failure of the company to furnish cars for shipment of sheep and hogs from Bergman, a station on appellant's road. Appellee made the request for cars on October 19, 1906, to be furnished on the 21st day of the same month, and the cars were not furnished until October 30th; the alleged injury to the sheep and hogs occurring in the meantime on account of the delay.

Appellee lived 10 miles from the station, and communicated his request for cars by telephone. The telephone call was answered by an employé in the office named Stevenson — not the station agent — and appellee testified that Stevenson promised to furnish the cars on the 21st of the month. He further testified that Stevenson informed him that the company had no pens at Bergman sufficient to take care of the stock, and instructed appellee to stop outside of town, where the stock could be properly cared for until the cars arrived. Appellee then drove the sheep and hogs over to a place about three-fourths of a mile from Bergman, reaching there on the evening of October 20th, where they were kept until the cars arrived. On arrival there appellee went over to Bergman and saw the station agent, who, he testified, informed him that the cars would be there the next day, and instructed him to leave the stock where they were until the cars arrived, promising to send a messenger informing appellee of the arrival of the cars. Stevenson denied, in his testimony, that he made any promise to furnish cars, but said he merely stated to appellee that they would do the best they could to get cars, and that he communicated the request to the station agent. The station agent, Butler, denied that either he or Stevenson had authority to promise cars, or that he ever promised the cars at any specified time, but admitted that he received the request for cars and forwarded same immediately to the train dispatcher at Cotter. It is therefore undisputed that appellee made the request for cars on October 19th, and that they were not furnished until October 30th. No effort was made by appellant to explain the delay. It is also undisputed that appellant's station agent knew as early as October 20th that appellee had his consignment of sheep and hogs ready...