| Ark. | Dec 1, 1919
(after stating the facts). It is first earnestly insisted by counsel for the plaintiff that the provision in the bill of lading that when goods are received on private or other sidings they shall be at the owner’s risk until the car is attached to a train, is of no effect under the Cummins amendment to the Interstate Commerce Act, which was approved March 4, 1915.
(1-2) Ye think counsel are mistaken in this contention. The only effect of the Cummins act was to prevent common carriers from limiting their liability as to the amount to be recovered when goods are lost or destroyed in transportation except in certain instances where goods are hidden from view; and the amendment also makes it unlawful for any such common carrier to provide by contract for a shorter period of time for'giving notice of claims than ninety days and for the filing of claims for a. shorter period than four months; and for the institution of suits than two years. This is shown by the express language of the amendment, and we do not deem it necessary to set out the language of the Cummins amendment, for the language relied upon by counsel for the plaintiff to sustain their present contention is contained in the Interstate Commerce Act as it existed before the Cummins amendment was adopted. The clause of the bill of lading relied upon by the railroad company to exempt it from liability in the case at bar is that property when received on a private siding for shipment shall be at the owners ’ risk until the car or cars containing it are attached to a train. This contract does not undertake to limit the railroad company’s liability as a common carrier, it merely defines the circumstances under which delivery for shipment and acceptance by the railroad company shall be understood as having taken place between the parties. The liability of the railroad company, under the Interstate Commerce Act, attaches as soon as the goods are delivered to the carrier for immediate shipment and are accepted by it. By the clause in question the parties undertook to agree when the delivery and acceptance were complete, and the meaning and intent of the clause in question was that the delivery for shipment and acceptance should be complete when the car was removed from the siding and attached to a train. This was a valid agreement under the principles of law decided in St. Louis, I. M. & S. R. Co. v. Jones, 93 Ark. 537" date_filed="1910-01-31" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Jones">93 Ark. 537. In that case the court held that under the Interstate Commerce Act carriers may stipulate with shippers of live stock that the latter shall assume all risks and expense of caring for the live stock until loaded in the cars. In that case the cattle had been placed in a pen of the railroad company at its station for immediate shipment, and a bill of lading had been executed by the railroad company. There was a clause in the contract which provided that the shipper should assume all care and risk of the cattle while in the pen and that the railroad should not become liable for them until they were loaded on its train. The court held that the contract was a valid one. The contract of shipment did not provide that the cattle were to be transported within any specified time, but the court held that it was the duty of the railroad to transport the cattle with all convenient dispatch, with such suitable and sufficient means as it was required to provide in its business, that is to say, in a reasonable time.
(3) We think the principle there announced controls here. It is true that under the facts of the case at bar the car had been loaded and sealed up. The railroad company had been notified of that fact and had issued its bill of lading for the car of heading. The object of the agreement, however, was to give the railroad company a reasonable time after this'to come and take charge of the property before it will be deemed to have accepted it for transportation and its liability as a common carrier commenced. This brings the case within the principles announced in St. L., I. M. & S. R. Co. v. Jones, supra. To the same effect see Bainbridge Grocery Co. v. Atlantic Coast Line R. Co. (Court of Appeals, Ga.), 70 S.E. 154" date_filed="1911-01-31" court="Ga. Ct. App." case_name="Bainbridge Grocery Co. v. Atlantic Coast Line Railroad">70 S. E. 154; Standard Combed Thread Co. v. Pennsylvania R. Co. (N. J.), L. R. A. 1916 C, 608; Siebert v. Erie R. R., 163 N. Y. S. 111, and Bers v. Erie R. Co., 163 N. Y. S. 114.
(4) It is next contended by counsel for the plaintiff that the railroad company was guilty of negligence in refusing to remove the car to a place of safety during the fire, and that on this account the judgment should be reversed.' In this contention we think counsel are correct. Thfe testimony for the plaintiff shows that the car had been loaded and sealed up; that it was on a siding connected with the railroad company’s main track; that it had notified the railroad company that the car was ready for movement and that it had issued a bill of lading therefor. The car was there waiting a reasonable time for the railroad company to place it in a train. Under these circumstances the car was under the control of the railroad company and it was not a volunteer when it was requested to remove the car to a place of safety during the fire and refused to do so. It had a switch engine at the scene of the fire with steam up manned by a crew.
According to the testimony of the plaintiff the railroad company had ample time to have removed the car to a place of safety after the crew- was requested to do so and before the hose was stretched across the track. This testimony, if true, under the circumstances, constituted negligence on the part of the railroad company, and the court erred in not submitting that question to the jury.
For that error the judgment will be reversed and the cause remanded for a new trial.