St. Louis Southwestern Ry. Co. v. Leder Bros.

• Decision Date: 13 July 1908
• Citation: 112 S.W. 744
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. LEDER BROS.
• Court: Arkansas Supreme Court

112 S.W. 744

ST. LOUIS SOUTHWESTERN RY. CO. v. LEDER BROS.

Supreme Court of Arkansas.

July 13, 1908.

Appeal from Circuit Court, Prairie County; T. P. Atkins, Special Judge.

Action by Leder Bros. against the St. Louis Southwestern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

S. H. West and J. C. Hawthorne, for appellant. Trimble, Robinson & Trimble, for appellees.

HILL, C. J.

This is the second appearance of this case here. See 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, given at the instance of the defendant, are also correct statements where applicable to excuse the carrier for a failure to perform its duties. It would have been better form, and would have made the instructions more clear, had the rule constituting the excuse been stated along with the rule stating the general duty resting upon the carrier of furnishing cars. But, as has frequently been said by this court, all of the law of the case cannot be stated in one instruction; and, so long as all of the instructions are each correct statements, and, when considered together, present every proper view of the facts, and are not in conflict with each other, there is no error in presenting them separately. What was said in St. L. S. W. Ry. Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112, is applicable here: "Criticisms are made of some of the instructions, in that they seem to permit a recovery if the jury find the defendant guilty of negligence without the qualification, `and unless they find the deceased not guilty of contributory negligence.' Taking these instructions as a whole, the court think they make it clear to the jury that contributory negligence on the part of deceased would defeat a recovery, even should they find the defendant guilty of negligence. It is generally impossible to state all the law of the case in one instruction; and, if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others" — citing authorities. The defendant endeavored to have the court instruct the jury that if the plaintiff could have procured cars in January and February to ship their hay, and the market had not depreciated, or was as good as in December, that no recovery other than for nominal damages could be had for the hay which was sold before the market price fell. The court properly refused to give this instruction. This theory would require the shipper to await the turn of the market to find out...