St. Louis, Iron Mountain & Southern Ry. Co. v. Furlow

• Decision Date: 01 March 1909
• Citation: 117 S.W. 517,89 Ark. 404
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. FURLOW
• Court: Arkansas Supreme Court

117 S.W. 517

89 Ark. 404

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. FURLOW

Supreme Court of Arkansas

March 1, 1909

Appeal from Ouachita Circuit Court; George W. Hays, Judge; reversed.

Reversed and remanded.

E. B Kinsworthy and Lewis Rhoton, for appellant.

1. The evidence offered by appellant to show what the rate was under the contract entered into was only explanatory of the contract, in nowise conflicted with it nor tended to vary or change its terms. The evidence was competent, and its exclusion was prejudicial. 62 Ark. 330; 53 Ark. 4; 81 Ark 374; 83 Ark. 163; 63 Ark. 475.

2. Instruction No. 5 given at appellant's request was a correct declaration of the law; and in the face of that instruction it was error to give the 6th instruction requested by appellee. It was also error to refuse instructions 8 and 9 requested by appellant. 76 Ark. 69; Id. 224; 55 Ark. 397; 74 Ark. 585; 77 Ark. 64.

3. The first instruction given at appellee's request is abstract, without evidence to support it, and misleading since there does not appear to have been any damage occasioned by delay in shipment. 74 Ark. 19; 77 Ark. 20; 70 Ark. 441; Id. 136; 69 Ark. 380; 3 Crawford's Digest, 931, 2, 3, 4.

4. This court has sustained the fifth paragraph of the contract; and the burden of proving that the required notice was given is upon the shipper. 63 Ark. 331; 82 Ark. 353; 67 Ark. 407; 1 Hutchinson on Carriers, 442.

Thornton & Thornton, for appellee.

OPINION

BATTLE, J.

The complaint of plaintiffs, W. H. Furlow and B. M. Bigers, against the defendant, St. Louis, Iron Mountain & Southern Railway Company, embraces two claims for damages, one for delay in transportation of plaintiffs as passengers and loss of baggage, and the other for injuries to horses sustained while in course of shipment from Coffeyville, Kansas, to Harrell, Arkansas. There is no controversy in this court about the first.

They allege that, on or about the 15th day of September, 1907, plaintiffs loaded in a stock car of the defendant at Coffeyville, Kansas, twenty-five or twenty-six horses in good condition, and it agreed to deliver them in like condition at Harrell, Arkansas; but "on the 17th day of September, 1907, while at Little Rock, Arkansas, defendant permitted said car loaded with plaintiffs' horses to be continually run back and forth on the switch yard of defendant for a period of seven and one-half hours, bumping the car violently against other cars, knocking plaintiff's horses down, causing them to tramp upon each other, knocking them against each other and against the wall of the car, till they were badly bruised and damaged, thereby diminishing the value of said carload of horses to plaintiffs at least $ 300; that when said car was transferred to Chicago, Rock Island & Pacific Railway Company to be carried to Harrell it was then in a broken-down condition, insomuch that said car loaded with said horses was kept on the said track of the Chicago, Rock Island & Pacific Railway Company for a period of three hours; and that all of the negligence of the defendant aforesaid contributed to the injury and damage of plaintiffs, and they prayed judgment for $ 331."

The defendant answered, and specifically denied each allegation of the complaint, and alleged that the contract of shipment into which plaintiffs and defendant entered was a special contract, by which the shipper assumed certain risks, and that the damages complained of were risks assumed by plaintiffs; and that plaintiffs had failed to comply with the contract and were not entitled to recover.

The contract of shipment referred to in the pleadings was a printed form with all the blanks filled, except the rate of freight to be paid, and contained the following statements and stipulations: " at the rate per subject to minimum weights and length of cars provided for in tariff, said rate being less than the rate charged for shipments transported at carrier's risk, for which reduced rate and other considerations it is mutually agreed between the parties hereto as follows:

* * * *

"Fifth. That, as a condition precedent to the recovery of any damages for any loss or injury to live stock covered by this contract for any cause, including delays, the second party will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party, or to the agent at destination or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated; and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims, and to any suit or action brought thereon.

* * * *

"Twelfth. That in making this contract the undersigned owner, or other agent of the owner, of the stock named herein expressly acknowledges that he has had the option of making this shipment under the tariff rates, either at carrier's risk or upon a limited liability, and that he has selected the rate and the liability named herein and expressly accepts and agrees to all the stipulations and conditions herein named."

Evidence was adduced in the trial of the issues tending to prove the following facts: The foregoing contract was made by plaintiffs and defendant on the 15th day of September, 1907, at Coffeyville, Kansas. Twenty-five or twenty-six horses were delivered at that time and place, in good condition, by plaintiffs to defendant for shipment to Harrell, Arkansas. Defendant had two rates of freight for shipment of live stock, one where the stock was shipped at the carrier's risk and the other where the liability was limited. The contract shows that the latter was agreed upon, and the defendant offered to prove what that was, and the court would not permit it to do so. The horses were shipped according to the contract, but were delivered in bad condition at Harrell. "They were tramped on and bruised and cut when delivered; one of them had a gash on her shoulder, and another was stamped up badly and scratched." All of this damage was done while in the yards at Little Rock "on account, as they state, of rough handling while being switched about the yards."

The horses arrived at Harrell on the 18th of September, 1907, at about two o'clock P. M. There was no station agent at Harrell. The defendant's nearest station was at Camden, about 35 miles from Harrell. Four or five days after the delivery of the horses at Harrell, plaintiffs, by their attorney, gave notice of claim for damages to agent of the defendant at Coffeyville, Kansas, by mail.

The court, over the objections of the defendant, instructed the jury, at the instance of the plaintiffs, in part, as follows:

"[1]. is the duty of common carriers to furnish sufficient facilities for the reasonably prompt transportation of goods or stock tendered for carriage, and they are liable for any negligent delay in furnishing such facilities, and if you believe from the evidence in this case that the St. Louis, Iron Mountain & Southern Railroad Company delivered the car of horses in controversy to the Chicago, Rock Island & Pacific Railway Company, a connecting carrier, in a broken or damaged car, and that on this account plaintiff's horses were held in transit for an unnecessary length of time, you will consider this in arriving at the amount of damage plaintiffs are entitled to, provided that you find that they are entitled to any damage."

"6. The jury are instructed that if they find from the evidence that the plaintiff gave notice to the defendant of the damage to the stock within six days after the arrival of the stock at the destination, then the same was a reasonable and sufficient compliance with the terms of said contract."

And the court instructed the jury, at the request of the defendant, in part, as follows:

"[4]. If the jury believe from the evidence that the defendant received the stock mentioned in the complaint, and which was destined to pass over defendant's road and a connecting line, and contracted only to carry it over its own line and then to deliver it to the connecting line, then they will find for the defendant, unless they find that the damage to the stock mentioned occurred while said stock was in this defendant's...