St. Louis, Iron Mountain & Southern Railway Company v. Tilby

• Decision Date: 22 February 1915
• Docket Number: 195
• Citation: 174 S.W. 1167,117 Ark. 163
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TILBY
• Court: Arkansas Supreme Court

174 S.W. 1167

117 Ark. 163

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TILBY

No. 195

Supreme Court of Arkansas

February 22, 1915

Appeal from Woodruff Circuit Court, Northern District; J. M Jackson, Judge; affirmed.

Affirmed.

E B. Kinsworthy, P. R. Andrews and T. D Crawford, for appellant.

1. Instruction No. 1, given at appellee's request, was too broad in making the carrier liable "for all damages which may accrue to the property shipped," even though such damages may be due to the inherent nature of the property. 6 Cyc. 381. It was also erroneous in imposing an absolute duty to ice the car. 41 Am. Rep. 696.

2. The only ground of negligence relied upon by appellee was the failure to furnish a car already iced. It was therefore error to refuse to instruct the jury as requested by appellant that their verdict should be for the defendant, in the event they found that the plaintiff, with full knowledge that said car was not properly iced, loaded his fruit into the car.

3. If the peaches were in such a heated condition as to cause them to ripen prematurely at the time they were loaded, the defendant would not be liable, and the court erred in refusing so to instruct the jury.

4. It was error to admit proof of diversion of the shipment, and to permit appellee to amend his complaint so as to show the diversion of the car and its final destination Appellant's contract with appellee contemplated Burlington as the destination. Testimony as to the diversion was prejudicial, since plaintiff's testimony shows that the market at Burlington was "too loaded" to justify him in stopping the car there.

5. The verdict is excessive. 73 Ark. 112; 88 Ark. 594; 101 Ark. 172; 54 Ark. 22; 74 Ark. 358; 44 P. 39.

E. M. CarlLee, for appellee.

1. Instruction 1, correctly states that the initial carrier is liable to the shipper for damages to an interstate shipment undertaken by it, whether the loss occurred on its own line, or on the lines of connecting carriers. Act 270, Acts 1907; 89 Ark. 154; 91 Ark. 97.

There is no merit in the contention that the instruction is abstract as being without allegation or proof to sustain it. the uncontradicted proof shows that the fruit went into the car in first-class shipping condition, and arrived at its destination in an almost worthless condition.

The complaint in apt words charges inadequate refrigeration along appellants line and the line of connecting carriers. The language of the complaint will be given every fair and reasonable intendment. 91 Ark. 400, 121 S.W. 270; 96 Ark. 163, 131 S.W. 674.

2. The court properly refused to give instruction 8, stated in substance in appellant's argument No. 2, above. It ignores plaintiff's theory that it was necessary for him to load his peaches at the time he did, or wait until 12 o'clock the next day.

3. There was no testimony that the peaches were in a heated condition at the time they were loaded but on the contrary the proof shows that they were in a "sound, first-class shipping condition." Instruction 3 would have been abstract and misleading, and was correctly refused.

4. There was no error in admitting proof of diversion and permitting amendment of the complaint to conform to the proof. The proof was admitted without objection. Kirby's Dig., § 6145; 78 Ark. 346, 95 S.W. 778; 88 Ark. 181, 114 S.W. 221; 89 Ark. 300, 116 S.W. 676, 118 S.W. 1009.

5. The verdict is not excessive. There was no re-shipment in this case, but the plaintiff preceded it and diverted it, of which diversion appellant had knowledge through its agent at Burlington. The entire shipment was, throughout, on a single bill of lading.

MCCULLOCH, C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

The plaintiff seeks in this case to recover from the defendant railway company damages sustained by reason of injury to a shipment of a carload of peaches from or Camden, Arkansas, to Burlington, Iowa. Plaintiff owned a fruit farm a few miles out of Camden, and in July, 1912, having a carload of peaches to ship, applied to defendant's agent for a car properly iced. That was on July the 17th or 18th, and the shipment was to be made on the 20th. The agent agreed to have the car ready for the peaches to be loaded into it on the morning of the 20th, and it was understood that plaintiff was to gather his peaches and have them ready for shipment on that date. He gathered his peaches on the 19th and hauled them to Camden and stored them in a hay barn ready to be loaded on the cars the next day; but when he got ready to load them on the morning of the 20th, he found that the car had not been iced according to the agreement made with him by the agent. He called upon the agent and a controversy arose between them concerning the failure to ice the car and as to whether he should load the peaches into the car without it being iced. There is a conflict in the testimony as to the substance of the conversation between the two--the plaintiff and the agent. The plaintiff testified that he loaded the peaches under protest and insisted that he should have an iced car, as it was very warm weather and he could not wait any longer for the car to be iced. The agent testified that he was about to have the car iced there at Camden and instructed the plaintiff not to put the peaches into the car until it could be iced. There is a further conflict in the testimony of the two men as to when the car was finally iced and the amount of ice put into the bunkers. The agent says it was iced about 1:30 o'clock on the 20th, and that the ice company reported to him that eight thousand pounds of ice was put in the bunkers, which was sufficient as the initial icing; but the plaintiff testified that the bunkers were not more than half full and that it was 3:30 or 4 o'clock in the afternoon before the ice was put in. The plaintiff went to Burlington ahead of the car and when he reached there he found that the market there for peaches was overstocked and in such condition as not to justify trying to sell them and he applied to the agent of the connecting carrier and had the shipment diverted through to St. Paul and thence to Minneapolis. The car was found to be well iced when it reached Burlington, and also when it reached St. Paul and Minneapolis, but the peaches were so badly damaged when they reached Minneapolis that they had to be sold at a price that was scarcely sufficient to pay the freight bill. The undisputed evidence was that the peaches were in good condition when loaded into the car at Camden and that they were almost worthless for marketing purposes when they reached St. Paul. Peaches of that kind in good condition were worth sixty-five cents per basket at Minneapolis the day the shipment reached there, but plaintiff was compelled, on account of the damaged condition of the peaches to sell them at a greatly reduced price. The jury returned a verdict in his favor for damages in the sum of $ 655.65, which was the difference between what the peaches would have brought at the market price at Minneapolis if in condition and what the plaintiff got for them when sold there.

It is contended that the evidence was not suffi- cient to sustain the verdict, but we think there was sufficient evidence to warrant a finding that the damage to the fruit was caused by defendant's failure to furnish a car properly iced. The undisputed evidence is that the peaches were in first-class condition for shipment at the time they were loaded in the car, and the jury were warranted in finding that if the car had been properly iced before the time for shipment, so as to enable the plaintiff to load the peaches into a cold car, they would have gone through to market without damage. The testimony is undisputed that two days before the shipment was to be made the plaintiff applied for a car to be furnished properly iced, and that the agent agreed to furnish the car and that this was not done. It was very hot weather in July, and when the car was delivered to the place where the peaches were to be loaded, and it was opened, plaintiff found that no ice had been put in it at all. It is true the agent testified that he was ready to have the car iced there at Camden, and that he tried to get the plaintiff to wait until it could be iced; but the plaintiff, on the other hand, testified that there was nothing for him to do but to load the peaches into the car, which he did under protest, and that there was not sufficient ice put into the car to cool it. Out of this conflict the jury might have found that the failure to furnish the car already iced caused the damage and that the controversy between the plaintiff and the agent, as to whether the peaches should be put into the car first or delayed until after the ice was put into the bunkers, was unimportant.

Exceptions were saved to the following instruction, given at the instance of the plaintiff, which was a part of instruction ...