St. Louis Southwestern Ry. Co. v. Clay Gin Co.

• Decision Date: 06 January 1906
• Citation: 92 S.W. 531
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. CLAY GIN CO.
• Court: Arkansas Supreme Court

92 S.W. 531

ST. LOUIS SOUTHWESTERN RY. CO. v. CLAY GIN CO.

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Circuit Court, Clay County; Allen Hughes, Judge.

Action by the Clay Gin Company against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

On the 3d day of August, 1903, the appellee instituted this action against the appellant, and alleged it was a railway corporation operating a line as a common carrier in Missouri and Arkansas, and the appellee was in the months of October, November, and December, 1902, engaged in shipping cotton seed from the town of Rector, in Clay county, Ark., to a customer at Cairo, Ill., and that during said months it had for shipment 65 tons of seed of the market value of $16 per ton, which were to be shipped over appellant's line, and it made demand through appellant's agents at Rector for cars to ship said seed, and the appellant negligently failed and refused to provide transportation for the same, and that by reason of said failure said seed rotted, whereby appellee was damaged in the sum of $850. The appellant answered and denied it at the time mentioned, or any other time, either carelessly, negligently, or otherwise failed and refused to furnish and provide transportation for the shipment of appellee's cotton seed, and denied that, by reason of its failure to furnish cars for the shipment of same, any part of the seed rotted or spoiled, and denied plaintiff was damaged in the sum of $850, or in any other sum. Appellant further alleged: That it was engaged in transporting interstate commerce, and the freight mentioned for shipment was to be transported out of the state of Arkansas through the state of Missouri, and therefore became interstate freight, and under the laws it had to furnish cars and facilities to all of its patrons alike; that, at the time it was claimed the seed rotted and spoiled, there was an usual and unexpected demand for cars from the various shippers of such products as cotton, cotton seed, wheat, corn, flour, lumber, cattle, horses, hogs, and many other classes of freight, and on account of the unexpected and extraordinary demand for cars it was unable to supply the demands during the months of October, November, and December; that it apportioned its cars to the various shippers in proportion to the respective wants and needs as fairly and equitably as it was possible for it to do.

The proof on behalf of appellee showed that during the months of October and November it tendered to appellant cotton seed for shipment in car-load lots, and demanded cars for such shipment; that appellee failed to furnish it the cars it needed; and that, on account of its failure to get the necessary cars, it lost 65 tons of cotton seed worth from $15 to $17 per ton. Witnesses for appellee testified that there were others engaged in the same business of shipping cotton seed from Rector Station, and that, while appellee failed to receive cars on its demand therefor, the other parties received cars regularly. But these witnesses on cross-examination all answered that they did not know how many cars the other shippers received during the months of October or November, nor did they know how many cars the appellee received during those months. It was shown that from the 3d to the 10th of October the appellee received three cars, while the Rector Gin Company, during the same period, received seven cars. During this period appellee lost seed which it would not have lost had cars sufficient been furnished it. Demand was made daily upon appellant for cars, and the company was notified that the cotton seed of appellee was rotting for lack of cars in which to load same when it was ready for shipment.

On behalf of appellant the proof showed that during the months of October and November there was a shortage in cars, brought about by an unforseen and extraordinary accumulation of freight, and by other conditions, which the transportation agent and the chief train dispatcher of appellant explained as follows: A. B. Liggett testified that he was its superintendent of transportation, and had charge of the car service in Missouri and Arkansas. All customers shared alike in a shortage. There was a shortage of cars in the months of October and November. In October, 1902, there was an average daily shortage in Missouri of 104 cars per day, and in Arkansas 175 ears per day. In November they had a daily shortage in Missouri of 224 cars, and in Arkansas of 644 cars. At that time the company had seven cars per mile for each mile of its main line or branches, or about 7,000 cars, which compared favorably with other roads in Arkansas and Missouri. That they now had nine cars to the mile. In explaining the shortage witness said: "It is quite a long story how cars are handled. If we had 15 cars to the mile and we loaned 6 cars of it to other roads, and the other roads didn't give us any assistance, we would soon be out of cars. The rule is, our connections should furnish us their pro rata of cars for our cars loaded to be shipped by way of their line, and their connections are also supposed to furnish their pro rata of cars, or, in other words, for business loaded on our lines and going over the I. C. and over their road, we frequently get 500 or 600 cars from them in a short time. Now during the fall of 1902 the condition in what we call the Eastern territory was very bad. The lines all got congested — had more business than they could handle. The lines were blocked so that they could not move the cars, and we had thousands of cars off of our own line that could not be sent back home to us. We got our cars away from home and could not get them back. Our immediate connections did not have any cars to give us. That is true of the I. C. and C. & E. I., and previous to this they had been giving us a large number of cars to help us out." Witness said that during the fall of 1902 the demand for cars was greater than it had ever been...