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

• Decision Date: 31 January 1910
• Citation: 125 S.W. 1025,93 Ark. 537
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. JONES
• Court: Arkansas Supreme Court

125 S.W. 1025

93 Ark. 537

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

Supreme Court of Arkansas

January 31, 1910

Appeal from Lawrence Circuit Court, Eastern District; Charles Coffin, Judge; reversed.

Judgment reversed and cause remanded.

Kinsworthy & Rhoton, S.D. Campbell and James H. Stevenson, for appellant.

1. Appellee, having been offered a choice of contracts and having for a consideration elected to take a contract limiting the liability of the carrier, was bound by its terms. Although forbidden on grounds of public policy from contracting against liability for loss or damage to goods by its own or its servants' negligence, a carrier may, for a consideration, contract against liability as an insurer and against losses from unavoidable accident. 39 Ark. 148; Id. 523; 50 Ark. 397; 73 Ark. 112; 46 Ark. 236; 47 Ark. 97; 57 Ark. 112; Id. 127; 82 Ark. 353; 81 Ark 469. The provision for notice in contracts of this nature has frequently been upheld by this court. 63 Ark. 351; 67 Ark 404; 89 Ark. 454; 9 Ark. 308. The validity of the stipulations of such contracts, when reasonable, and based on valid considerations, is not affected by the Hepburn Act. 89 Ark. 404; 90 Ark. 308. The stipulation in a bill of lading of live stock that the shipper "shall assume all risk expense of feeding, watering, bedding and otherwise caring for the live stock covered by the contract, while in cars, yards, pens or elsewhere," being based on a reduction of freight rates, is valid and binding. 82 Ark. 469, 475; 56 Ark. 424. If, by reason of the shipper's carelessness, cattle escape from the stock pen of the carrier, he cannot recover. 68 Ark. 218.

2. The first instruction given at appellee's request is erroneous, being in conflict with that part of the contract waiving all former understandings, promises or contracts with or by the appellant, and also in conflict with the stipulation in the contract that the cattle were not to be forwarded by any particular train or any particular time, or in season for any particular market, and that no agent of the company should have authority so to agree. 63 Ark. 443, 447-8.

3. The second and fourth instructions erred in telling the jury that it was appellant's duty to furnish a car without delay. Moreover, there being no evidence of negligence in this respect, there is no evidence on which to base such instructions. The extent of appellant's duty was to forward the cattle within a reasionable time. 63 Ark. 443. Plaintiff's fifth instruction is erroneous, being in direct conflict with the provision of the contract providing that "no agent of this company has any authority to waive, modify or amend any of the provisions of this contract, or to agree to ship said cars by any particular train," etc. Erroneous also because the agreement with Fullenwider, if made, was without consideration and was not binding. It was plainly appellee's duty, in the light of the contract, to search for and recover the strayed cattle, to say nothing of his duty, independent of the contract, to exercise reasonable dilignce to mitigate the damages. 13 Cyc. 71-2, 73, 75; Id. 73, 75; 67 Ark. 112. The proposition that an agreement to do that which one is already bound to do is not a valid consideration needs no citation of authorities: but see 52 Ark. 174; Id. 151; 1 Beach on Contracts, §§ 157, 165.

O. C. Blackford, for appellee.

1. Both in the admission of evidence and in the instructions of the court to the jury, the latter were correctly allowed to pass upon and determine the question of negligence of appellant and contributory negligence of appellee, giving due consideration to the bill of lading, and not permitting the same to extinguish and make a nullity of the statute providing that carriers shall "furnish sufficient accommodations for the transportation of all such * * * property as shall, within a reasonable time previous thereto, * * * be offered for transportation," etc. Kirby's Digest. § 6592. See also, Id. § 6804.

2. A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law; and it is not just and reasonable for a common carrier to stipulate for exemption from responsibility for the negligence of itself or its servants. 46 Ark. 241.

3. While it is true that the contract did not require the carrier to forward the stock in time for any particular market, yet there is implied a contract to ship with reasonable promptness and without unnecessary delay. 82 Ark. 358.

BATTLE, J. HART, J., dissents.

OPINION

BATTLE, J.

Charles Jones enclosed about, thirty head of his cattle in the stock pen of the St. Louis, Iron Mountain & Southern Railway Company at Minturn, Arkansas, for shipment over its railway. About the 10th day of June, 1908, the cattle escaped from the pen. After much trouble and some expense he recovered a part of them. About eleven of them he never recovered. He brought this action against the railway company to recover the losses sustained by him by reason of their escape. He alleged in his complaint as follows:

"That on or about the 10th day of June, 1908, plaintiff made arrangements with the station agent of the defendant at Minturn, Arkansas, to set a car at the stock pen, suitable to the shipping of a carload of cattle. That the defendant, by negligence of its agents and employees in the first instance, unlawfully failed and refused to spot or locate said car within the statutory time or at the proper place for the loading of the cattle. That he, depending upon the defendant to comply with its contract and the provisions of law, procured and gathered together and placed in the stock pen, at said station, a carload of cattle for shipment to E. St. Louis, Ill., consisting of twenty short four-year-old steers, average weight of which was 900 pounds each, six head of cows, average weight of which was 800 pounds each, four three-year-old heifers, average weight 600 pounds each, one two-year-old heifer, weight 500 pounds, and one two-year-old steer, weight 500 pounds. That by the malicious, wanton negligence of the defendant's agents and employees in locating car at the proper place for loading and within the proper time, and by negligently failing to accept and receive for transportation of cattle, the same having remained in the stock pen for fifteen hours, without food or water, after they had been delivered to defendant for transportation, and after the defendant, by its station agent at Minturn, had executed and delivered to plaintiff its bill of lading for same, the cattle became restless and began to try to break out of the stock pen, and about ten o'clock on the night of the 10th day of June, 1908, the cattle remaining in the stock pen by the negligence of the defendant as aforesaid, said cattle became frightened and stampeded by reason of the different trains of the defendant that were passing upon the main line of its road and upon the side track at the station, breaking out of the stock pen and scattering in every direction, some going upon the track and being killed by the trains of the defendant, some being crippled, the number of which that were killed or crippled the kind of trains or the direction going being to the plaintiff unknown. Plaintiff states that he made an agreement with P. H. Fullenwider, purporting to be the agent of the defendant, subsequent to the time that the cattle escaped from the stock pen as above alleged, that plaintiff should get up all of the thirty-two head of cattle he could find upon the range, and ship them to the same market, and the same commission men that he had originally contemplated, and that the defendant would pay the market price for every and all of such cattle as plaintiff failed to find, and pay the plaintiff the difference he received on those he could find and ship, and the price they were worth at the time they would have reached the market had plaintiff got proper transportation originally, and for such shrinkage as the cattle that he should find sustained by reason of delay in shipping and to pay plaintiff a reasonable price for his trouble in locating and repenning the cattle; and for such necessary expenses as he might be put to in and about the same. Plaintiff states that he has made diligent search to find all of the cattle, but that he is unable to find any except nine steers, four years old, two three-year-old heifers, and four cows, of the original thirty-two head, which cattle were under the agreement shipped, together with other cattle of plaintiff, on the 23d day of June, 1908.

"That by reason of the defendant's negligence, plaintiff was compelled to sell the cattle upon the market for a price less than he would have received for the fifteen head of cattle on the date he would have sold them as originally contemplated, in the sum of $ 51.80, and that the cattle were caused to shrink by reason of the defendant's negligence aforesaid two hundred pounds, to his further damage in the sum of $ 7, and that he employed help in getting up the fifteen head of cattle and expended therefor the sum of $ 10, and that he was compelled to hire pasturage for the cattle during the time he was regathering same, and paid therefor the sum of $ 15, and that since shipping the fifteen head of cattle, he has located one of the cows, one three-year-old heifer and one two-year-old steer, and one two-year-old heifer, and that plaintiff, after making diligent search for all of the cattle as aforesaid, had been unable to find eleven head of the twenty four-year-old steers, as aforesaid, except those that were dead or crippled by the negligence of the defendant's agents and employees, and says as he believes and avers that all of the eleven head of...