67 Ark. 219 | Ark. | 1899
(after stating the facts.) The principal contention of the appellees in this case is that the appellant failed to construct its road so that it was -above high water; that in time of high water in Black river the roadbed was submerged in places so that the road could not be operated at all times, and was therefore not a “practical road,” in the sense of the contract. The evidence is that the road was built from Hoxie in Lawrence county to a point opposite the town of Pocahontas in Randolph county,—to a point within from three to five hundred feet of the east bank of Black river,—and that it was operated and carried freight and passengers between those points for the greater part of the time, and at all times except when the track of the road was overflowed in time of high water. It appears also from the evidence that the overflows on other roads in the state frequently cause those roads to suspend, of necessity, the operation of the roads for 40 or 50 days, and that the road built by the appellant was as good as the branch roads generally of the St. Louis, Iron Mountain & Southern Railway. So far as the interference with the operation of this road is concerned, we are of the opinion that the evidence shows that there was a substantial compliance with the contract and agreement of the appellant to build a practical road, in the sense in which the contract was made, and understood by the parties. It appears that its operation was suspended for a much shorter time by reason of high water than the operation of other roads had been suspended by reason of overflows from high water. A reasonable and fair construction of the contract and the evidence in relation to the road and its operation shows, in our opinion, that there was a substantial compliance by the appellant with his agreement and undertaking.
But the appellant contends that there was a failure to comply with the contract to build a “practical road,” in this, that the road was not built to the east bank of Black river, but only to a point within from 300 to 500 feet of said east bank of Black river, and that plaintiff had failed to construct the necessary turntables, Y’s, etc. Turntables and Y’s were not within the contract.
The question of failure to build the road to the east bank of Black river, if we concede, which we do not, that building of it within from three to five hundred feet of the east bank of Black river was a failure to comply with the letter of the contract substantially, yet this was waived by the third paragraph of the defendant's answer, which is copied in the statement of facts. The specifications of the grounds upon which the answer relies shows that the fact that the railroad was not built nearer the east bank of Black river than from three to five hundred feet is not one of the grounds relied upon.
Reversed and remanded for a new trial.