St. Louis Southwestern Railway Co. v. Leder

• Decision Date: 13 July 1908
• Citation: 112 S.W. 744,87 Ark. 298
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. LEDER
• Court: Arkansas Supreme Court

112 S.W. 744

87 Ark. 298

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. LEDER

Supreme Court of Arkansas

July 13, 1908

Appeal from Prairie Circuit Court, Southern District; T. P. Atkins Special Judge; affirmed.

Leder Bros, a firm doing business at Ulm, Arkansas, sued the St Louis Southwestern Railway Company for failure to furnish cars to ship hay in November, 1903. Defendant in answer alleged that it was unable to furnish cars as rapidly as requested on account of an unforeseen amount of freight being presented for shipment during the above months, and also denied that plaintiffs were damaged by its failure to furnish cars.

One of the plaintiffs testified that they demanded 30 cars in November, 1903, and one car per day in December, 1903, but received only ten cars during those months, and that in December, 1903, they sold 160 tons of hay in a barn for $ 3.50 per ton, which was from $ 1.00 to $ 1.50 less than they could have got if they had had cars to ship the hay. Some of the' hay was in plaintiffs' barn, five miles from Ulm.

The court gave the following instructions over defendant's objection:

"2. The jury are instructed that if you find from the evidence that the plaintiff applied to an authorized agent of the defendant company for cars in which to ship hay from the town of Ulm on the defendant's railroad in the manner customary there at that time, or offered hay to the defendant's authorized agent at Ulm for shipment in the manner customary with shippers there at that time, and that the defendant company failed or refused to furnish cars for said shipment of hay or receive same for shipment within a reasonable time after such demands by plaintiffs, then the defendant is liable to plaintiff for whatever damages they sustained by such failure or refusal by defendant.

"3. The jury are instructed that if you find from the evidence that plaintiffs requested defendant's agent at Ulm Arkansas, to furnish them cars in which to ship their hay from Ulm, giving the defendant and its agent a reasonable time in which to furnish said cars, and that this was the defendant's customary. manner there at that time to accept such freight for shipment, and that the defendant failed or refused to furnish said cars within a reasonable time and in such number as was necessary to transport said freight, then the defendant is liable for all damages the plaintiffs sustained by such refusal or failure to furnish said cars and ship said freight, and you should find for the plaintiffs in whatever sum the evidence shows them to be entitled to."

The court gave the following instructions at defendant's request:

"3. The jury are instructed that while railway companies are under obligations to furnish cars for the transportation of freight upon their lines of road, they are not bound, under the law, to procure transportation for unnforseen or unexpected quantities of freight tendered them upon their line of road; in such cases they are only required to use reasonable diligence in the furnishing of the cars without discrimination.

"4. The jury are instructed that, while it is the duty of railway companies to furnish cars to patrons without discrimination still before you can find for the plaintiffs you must find from the evidence that they requested cars to be furnished them, and that they had the hay ready to deliver on receipt of the cars, and that the railway company had the facilities for furnishing them, and failed to do so."

The court refused to instruct the jury at defendant's request as follows:

"5. The jury are instructed that if they find from the evidence the plaintiffs could have procured cars in the months of January and February, 1904, in which to ship their hay, and that the market price was as good in January and February, 1904, as in November and December, 1903, and that said sale was made before the market price depreciated, they cannot recover for anything more than nominal damages.

"8. The jury are instructed that the plaintiffs cannot recover damages for the depreciations in the price of hay while the same was on their farm five miles from Ulm."

The jury returned a verdict in favor of plaintiffs in the sum of $ 240. Defendant has appealed.

Judgment affirmed.

S. H. West and J. C. Hawthorne, for appellant.

1. The second and third instructions given on the part of the plaintiff are in conflict with the third and fourth instructions given on the part of the plaintiff. The general rule that all instructions given should be read together does not apply when the instructions are conflicting, and the jury are left without guidance as to which they should follow. 74 Ark. 585; 65 Ark. 64; 53 Ark. 393; 76 Ark. 69; id. 224; 77 Ark. 201. Under the second and third instructions the jury were left at liberty to find for plantiff in any sum they chose, whereas the measure of damages is the difference between the market price of hay in November and December, 1903, and January and February, 1904. 46 Ark. 483; 71 Ark. 571; 54 Ark. 22; 74 Ark. 358; 73 Ark. 112. The loss sustained by reason of a sale before or in anticipation of a fall of the market price must be borne by the plaintiffs. 29 Ark. 448; 34 Ark. 184; 54 Ark. 463; id. 22; 68 Ark. 218.

2. There could be no reason for depreciation in the market value of the hay while it remained on the farm. A railway company cannot be required to accept freight or to furnish cars for its transportation until tendered or placed where it could be easily and readily loaded into them. 76 Ark. 220; 75 Ark. 64; 69 Ark. 584; Hutchinson on Carriers, § 97.

3. The verdict is excessive. Only nominal damages are recoverable in this case.

Thos. C. Trimble, Joe T. Robinson and Thos. C. Trimble, Jr., for appellee.

1. No error in giving instructions 2 and 3. When taken in connection with instructions 3 and 4 asked for by appellant, they express the law, and appellant is not injured. 24 Ark. 264; 48 Ark. 396; 21 Ark. 357; 75 Ark. 325; 47 Ark. 97.

2. The verdict is reasonable.

OPINION

HILL, C. J.

This is the second appearance of this case here. See St. Louis S.W. Ry. Co. v. Leder, 79 Ark. 59, 95 S.W. 170. On the reversal, there was a trial, resulting in a verdict in favor of the plaintiff for $ 240, and the railroad company has appealed. The substance of the facts will be found in the statement of facts, with such instructions as here commented upon.

It is contended that the second and third instructions, given on behalf of the plaintiff, are in conflict with the third and fourth given on behalf of the defendants. The second and third instructions are correct general statements; and the third and fourth...