St. Louis & San Francisco Railroad Co. v. Crowder

• Decision Date: 15 April 1907
• Citation: 103 S.W. 172,82 Ark. 562
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CROWDER
• Court: Arkansas Supreme Court

103 S.W. 172

82 Ark. 562

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CROWDER

Supreme Court of Arkansas

April 15, 1907

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

Judgment reversed and remanded.

L. F Parker and B. R. Davidson, for appellant.

It is a fundamental law that a party, even though he has signed no contract, who accepts a bill of lading limiting liability, is presumed to know its contents, and to be bound by it. 1 Hutchinson, Carriers, 3 Ed. by Matthews & Dickson §§ 408-9. If plaintiff had signed the contract without reading it, and had accepted the lower rate, he would have been bound by its terms. 50 Ark. 397; 71 Ark. 185; 113 F. 91; Id. 92; 3 Am. & Eng. R. Cas. N. S. 290. That a common carrier may limit its common-law liability by special contract is not now open to question. 24 Am. & Eng R. Cas. N. S. 761. And that it may include in this contract exemption from liability on account of accident and every other cause except its own negligence is also fully established. 1 Hutchinson on Car. (3 Ed.), § 401; 39 Ark. 148; Id. 523; 47 Ark. 97; 64 Ark. 115; 3 Wall. 107; 16 Wall. 328; 112 U.S. 337. Such contracts are reasonable and binding, and there is no presumption that they are not based upon a valuable consideration. 50 Ark. 397; 71 Ark. 185; 46 Ark. 236; 67 Ark. 407. Having entered into such a contract, the burden is on the plaintiff to show that the injury was negligently inflicted. Ubi supra; 40 Ark. 375; 44 Ark. 208; 52 Ark. 26; 42 Am. & Eng. R. Cas. N. S. 787.

2. The court erred in admitting secondary evidence of the arrival and departure of trains. 2 Best, Ev. § 472; 1 Elliott, Ev. § 208. Also in admitting testimony that there was unusual shrinkage in weight of the stock, due to bad condition of the pens, whereas there was no allegation in the complaint to that effect. Kirby's Digest, § 6150; 70 Ark. 232; 71 Ark. 197; 67 Ark. 142; 23 Ark. 543. Also in permitting plaintiff to testify from a stock reporter, published in East St. Louis, as to the market at that point, and as to a decline in the market at a time when he was not there.

3. The agreement, as a condition precedent to right of recovery and in consideration of the reduced rate, to give the written notice stipulated in the contract, was reasonable, and should have been complied with. 63 Ark. 331; 67 Ark. 407; 1 Hutchinson on Car., § 442; 4 Elliott on Railroads, § 1412.

4. The evidence is uncontradicted that the delay was caused solely by the bursting of flues in the engine, and that this could not have been anticipated or prevented. The burden was upon plaintiff to show that it was due to appellant's negligence. Ubi supra; 55 F. 1003.

5. It was error to permit plaintiff's witness, Pearce, to testify to statements made by agents of appellant, who had nothing to do with the shipment. 52 Ark. 78; 71 Ark. 552; 78 Ark. 381. Such testimony was also inadmissible because its effect was to vary by parol a written contract which stipulated that no agent had authority to vary it by parol.

6. The ninth instruction left to the jury to pass upon the reasonableness or unreasonableness of the contract as to any of its provisions, and was therefore erroneous. 52 Ark. 406; 63 Ark. 331; 73 Ark. 205; 5 Ark. 495; 79 Ark. 172.

7. The court had no jurisdiction. But by the terms of the contract plaintiff agreed that in case of delay he would accept the actual amount expended by him for food and water in full compensation for his damages. The proof shows that the amount expended was less than $ 100. 45 Ark. 346; 77 Ark. 582; 79 Ark. 248.

8. The case should be reversed because of improper argument of plaintiff's attorney. 61 Ark. 130; 70 Ark. 179; Id. 305; 71 Ark. 415; 72 Ark. 461; 75 Ark. 577; 77 Ark. 238.

J. A. Rice, for appellee.

1. Errors not assigned in the motion for new trial are waived. 60 Ark. 267. The motion for new trial must contain the objection to all such evidence as is objected to and exceptions to the rulings thereon. Kirby's Digest, § 6223. An assignment that the verdict is contrary to the law is too indifinite. It should be pointed out in what respect it is contrary to the law. 2 S.W. 198; 68 Ia. 337; 59 Tex. 334.

2. A satement at the end of a series of instructions that "defendant excepts to each and every one thereof" is in effect but a general exception, the phrase "each and every one" being equivalent to "all." 88 S.W. 966; 97 S.W. 519; 25 S.W. 10; 23 S.W. 735; 23 Minn. 66; 47 N.Y. 576; 14 P. 761; 75 Ark. 181.

3. If the reasonableness of a contract limiting a carrier's liability is in dispute, it is proper to submit that question to the jury. 63 Ark. 333. Though the construction of a contract is properly for the court, yet, if it is submitted to the jury and they have construed it as the court ought to have done, no prejudice results, and there is no ground for reversal on that account. 81 Ark. 373.

4. Appellant can avail itself of only such defenses under the contract as it pleaded below. Defenses not pleaded are waived. 69 Ark. 256; 63 Ark. 336. See also, 39 Ark. 438. The stipulation relieving appellant of its common-law liability is without consideration and void.

5. Appellant fails to point out in what respect the attorney's argument is objectionable.

OPINION

RIDDICK, J.

This is an appeal by a railway company from a judgment against it for damages alleged to have been caused by its negligence in handling and moving two cars of cattle.

The facts, briefly stated, are as follows: Plaintiff, C. Crowder, shipped sixty-three head of cattle in two of the defendant's cars from Gravette, Arkansas, to St. Louis, Missouri. Gravette is a station on a branch line of the defendant railway, which line connects with the main line at Rogers, Arkansas. The train from Gravette to which the cars were first attached was a local freight which did not go further than Rogers. The cars containing the cattle left Gravette on the 24th day of July, 1904, and arrived at Rogers, Arkansas, about four or five o'clock in the afternoon of that day. There was no through freight scheduled to pass Rogers after that train arrived until about eight o'clock the next morning, and the cattle for that reason were unloaded and confined in stock pens at Rogers. The train which was scheduled to leave Rogers the next day at eight o'clock A. M. was delayed on account of the breakdown of the engine for several hours, and for this reason did not leave Rodgers until 2.35 P. M. that afternoon. In the meantime, the stock, as before stated, had been unloaded and confined in the stock pens at Rogers, which were in bad condition, had no feeding troughs, and were so muddy that the cattle could not be fed.

The cattle arrived in St Louis correspondingly late. By reason of their long confinement in cars and muddy stock pens the cattle decreased in weight and declined in value to a considerable extent.

Crowder brought an action against the company to recover damages suffered by the delay. He alleged that he had shipped the cattle under a written contract, which he attached to his complaint; that the delay in forwarding the cattle was without reasonable excuse and due to the negligence of the defendant, and he asked judgment for $ 721.69.

The answer of the defendant denies that it was guilty of any negligence in the shipment of the cattle, and denied that plaintiff complied with the stipulation in the bill of lading, which made it a condition precedent to recovery for any loss or damage to the live stock covered by the contract that plaintiff should within one day after the delivery of the stock, and before the stock was removed from the point of destination or mingled with other stock, give notice in writing of the claim for damages to some general officer or to the nearest station agent of the company or to the agent at destination or some general officer of the delivering line.

On the question of whether the notice referred to in the answer was given, the evidence at the trial was very unsatisfactory. It rested on circumstances and not on direct evidence, but a majority of the court are of the opinion that it was sufficient to support the finding of the jury on that point, and that the question was properly submitted to them.

The complaint, as before stated, based the right of plaintiff to recover damages on the allegation that the defendant had been guilty of negligence in detaining the cattle while en route and in not forwarding them with reasonable diligence. There was no allegation of negligence on the part of the company in failing to keep its stock pen at Rogers in good condition. The court, over the objection of the defendant, permitted the plaintiff to show that the stock pen at Rogers was in such a condition that the cattle could not be fed during their confinement there, and that this was one reason why they decreased so much in weight. We think that this evidence was competent...