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

• Decision Date: 01 June 1914
• Docket Number: 8
• Citation: 168 S.W. 131,113 Ark. 215
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. KEEFE
• Court: Arkansas Supreme Court

168 S.W. 131

113 Ark. 215

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

No. 8

Supreme Court of Arkansas

June 1, 1914

Appeal from Boone Circuit Court; George W. Reed, Judge; affirmed.

STATEMENT BY THE COURT.

The appellees, who were partners in the live stock business, sued the appellant for failure to furnish cars, alleging that they had 129 head of cattle ready for shipment, and that they made application to the appellant, through its agent at Pyatt, in Marion County, for three stock cars; that the agent informed them that the cars would arrive upon a certain date; that on that date they drove their cattle to the station, or made preparation to do so, and were then informed that the cars intended for them were not left at Pyatt for the purpose of shipping appellees' cattle; that continuously after said date, viz., the 10th day of October, they tried to obtain cars for the purpose of making shipment of their cattle, but failed to obtain same, and that by reason of the long delay in shipping their cattle, caused by the negligence of the appellant in failing to furnish cars, they had been damaged in the sum of $ 584, the items of which they specified.

Appellant after denying the allegations of the complaint, set up the following: "That on or about the times and dates that plaintiffs allege that they ordered said cars, it would have been impossible to furnish same, and that defendant could not have furnished same on account of the fact that all of the cars of that kind and character desired by plaintiffs were in use, and that there were more orders for same on each and every day from October 10 until October 22, than could possibly be furnished by defendant."

There was testimony on behalf of the appellees tending to establish the allegations of their complaint.

On behalf of the appellant, F. J. Potter testified that he was chief dispatcher at Cotter when the demand for cars was made by appellees; that orders for cars wanted for shipment of live stock were sent to him to be filled. Their records showed that they were short of cars on his division October 12, 13, 14 and 15; that they offered the appellees cars on the 16th and 17th, but that appellees did not want to load on those days. They preferred to wait until the 19th, and on the 19th, appellant was short of stock cars, and could not supply them until October 22, when it again offered appellees cars for loading their cattle. The cars were actually furnished and placed for appellees on the evening of October 22, and remained there awaiting their convenience until the morning of October 24.

The reason why there were more cars short a few days after this order was received, than at the time of receiving their order, was because of increased orders for cars, and not having cars to fill them. Orders were increasing every day and appellant did not have enough cars to fill the orders owing to the great demand. There was a very unusual demand at that time for stock cars in the business of the defendant. The company and the system owned a sufficient number of cars to handle the business during an ordinary season and an ordinary run of business.

There was a verdict in favor of the appellees in the sum of $ 350. Judgment was entered for that sum, and this appeal has been duly prosecuted. Other facts stated in the opinion.

Judgment affirmed.

E. B. Kinsworthy, McCaleb & Reeder and T. D. Crawford, for appellant.

1. The testimony of Joe Keefe to the effect that the company had furnished cars to other parties after appellees had demanded cars, was purely hearsay and incompetent. It was further inadmissible, because there was no allegation charging discrimination, and appellant had had no opportunity to prepare a defense against such a charge.

2. The stock were never weighed before shipment, and the testimony as to the depreciation of the stock in weight was without any proper basis upon which to ground the testimony. How could any one say that the stock depreciated fifty pounds per head and how could appellant rebut such testimony?

3. Since there was no competent evidence to contradict appellant's positive evidence that there was an extraordinary demand for cars at this time, and that under ordinary conditions, it had ample equipment to supply all reasonable demands, the court should have directed a verdict for appellant. 81 Ark. 373.

Appellees, pro se.

1. The testimony with reference to appellant having furnished cars to others who made demand therefor after appellees had demanded cars, was introduced only for the purpose of showing that there was not such an extraordinary demand for cars at this time as would prevent appellant, by the use of ordinary care, from supplying the demand of appellees, and it was competent and admissible for that purpose. 81 Ark. 388.

2. There was sufficient foundation laid...