161 Ark. 289 | Ark. | 1923
(after stating the facts). The only assignment of error is that the undisputed testimony shows that there was unprecedented demand for cars, which the railway company was unable to supply. Wo are convinced, from reading the testimony, that it was a question for the jury as to whether or nqt the demand upon the railway company for cars was so sudden and so great that the railway company could not reasonably have anticipated it, and could not, by the exercise of ordinary care, have supplied the demand.
In the case of St. L. I. M. & S. R. Co. v. Keefe, 113 Ark. 215, it was held that the fact that the defendant was short of stock-cars on a certain division of its railway system is no defense to an action for damages for failure to furnish stock-cars, and does not show that the carrier exercised ordinary care to supply the demand of the shipper.
It was further held that, in an action for damages for failure to furnish freight-cars, the railway company miist show, to relieve itself from liability, that it could not, by the exercise of ordinary care, have supplied the cars demanded by the shipper.
Shippers located on branch or lateral lines of a railroad are entitled to the same kind of treatment as accorded to those whose business is situated on the main line of the railroad. The shipper located on the branch line is entitled to be furnished cars without discrimination ag*ainst him, for the reason that the railroad company has control over the branch lines as well as the main line of its railroad, and can send cars anywhere over its system. In Dickinson v. Robertson, 144 Ark. 515, it was held: “Where the evidence established that, owing to the exigencies of war, a carrier was unable, during certain months, to furnish the usual amount of cars to its shippers, but that it was able to fill from forty to seventy-five per cent, of the orders received for ears, proof that the carrier only furnished twenty-two per cent, of the ears ordered by the plaintiff during those months justified the submission to the jury of the issue whether the carrier had discriminated against plaintiff.”
Tested by the principles of law laid down in those cases, it cannot be said that there is no evidence óf a substantial character to warrant a verdict for the plaintiff.
Two shippers of hoops and headings located at Des Arc testified that they shipped their products in boxcars which were also used for the shipment of hay, and that during the months of July, August and September, 1920, they got practically all the cars that they needed.
Other shippers of hay at Hazen, Ark., on the main line, testified that they practically got all the ears that they needed during these same months. Notwithstanding the testimony of the defendant’s witnesses to the contrary, the jury had a right to accept as true the testimony of the witnesses for the plaintiff, and it is fairly inferable from their testimony that there was no unusual ear shortage during the summer and early fall of 1920. If they secured practically all the cars necessary for the shipment of hay at Hazen, the jury might have found that there was a discrimination against the plaintiff in not sending cars over the branch line, 25 miles distant, for the purpose of shipping his hay. This view is strengthened when we consider that shippers of heading and hoops, who also used box-cars in the shipment of their products, obtained all the cars they needed during this same period of time.
It follows that the evidence for the plaintiff warranted a verdict in his favor, and the judgment will therefore be affirmed.