St. Louis & S. F. R. Co. v. Hurst

• Decision Date: 03 February 1900
• Parties: ST. LOUIS & S. F. R. CO. v. HURST.
• Court: Arkansas Supreme Court

55 S.W. 215

ST. LOUIS & S. F. R. CO. v. HURST.

Supreme Court of Arkansas.

February 3, 1900.

Appeal from circuit court, Crawford county; Jeptha H. Evans, Judge.

Action by Jesse Hurst against the St. Louis & San Francisco Railroad Company for damages for loss of goods shipped over defendant's road. From a judgment for plaintiff, defendant appeals. Reversed.

L. F. Parker and B. R. Davidson, for appellant. Chew & Fitzhugh, for appellee.

BATTLE, J.

In the complaint in this action it is alleged that the defendant, St. Louis & San Francisco Railroad Company, received from the plaintiff, Jesse Hurst, and agreed to carry, 10 boxes of household goods and other property from the town of Talahini, in the Indian Territory, and deliver them to the plaintiff at the town of Mountainbury, in this state; "that the defendant carelessly and negligently lost one box, of the value of $125, and permitted other goods to be damaged in the sum of $125, by allowing the same to become wet, and by breaking, scarring, and otherwise injuring the goods"; and for such damages the plaintiff asked for a judgment for $250.

The defendant answered the complaint, and denied the loss of the box, and that the other goods were damaged; and alleged that by the terms of the contract of shipment of said boxes and other property it was agreed by and between the plaintiff and defendant that the railroad company should not be "responsible for loss or damage to property unless notice of such loss or damage" was "given to the delivering carrier within thirty hours after delivery," and that no such notice had been given.

The evidence adduced at the trial proved that the defendant received the 10 boxes and other property from the plaintiff for shipment from Talahini, in the Indian Territory, to Mountainbury, in this state, and agreed to deliver the same to the defendant at the latter place; and that a bill of lading, in which the contract of shipment was contained, was executed by the defendant to the plaintiff. In the bill of lading is the following stipulation: "No carrier shall be responsible for loss or damage to property unless notice of such loss or damage is given to the delivering carrier within thirty hours after delivery." Evidence was adduced tending to prove that all the property shipped, except one box of goods, was delivered to the defendant at Mountainbury; that one of the boxes was lost, and the other property was damaged; and that no notice of such loss or damage was given to the defendant within 30 hours after the property received was delivered. Evidence was also adduced tending to prove that none of the property was lost or damaged, and that all of it was delivered to the plaintiff according to the contract.

Upon this evidence the court instructed the jury, over the objections of the defendant, as follows: "If the goods of plaintiff, or any of them, were lost or damaged by want of ordinary care on the part of the defendant, while in its...