150 Ark. 571 | Ark. | 1921
Appellant owns and operates a short-line railroad in Logan County, Arkansas, between the towns of Paris and Scranton, connecting at Paris with the road operated by the Arkansas Central Railway Company, running from Paris to Fort Smith. In the year 1919, appellee delivered cotton to appellant at Scranton for shipment to Fort Smith, and appellant issued bills of lading for through transportation over appellant’s line from Scranton to Paris, thence over the line of the connecting carrier to Fort Smith. These bills of lading contained a stipulation to the effect that appellant’s agreement was only to transport the cotton over its own lines, and would not be liable for loss, damage or injury not occurring on its own line of road. This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by depreciation in the weight and value of the cotton and expense of rebaling the same resulting from alleged delay and exposure of the cotton to inclement weather while in transit. The damages were laid in the sum of $1,933.62, and the verdict of the jury awarded damages in the sum of $1401.43.
The testimony “adduced by appellee was sufficient to establish the fact that the cotton was delivered to appellant at Scranton in good condition, and that it was considerably damaged and depreciated in value when it arrived at Fort Smith; that the cotton had to be repiclced and re-baled — ’“reconditioned”—as the witnesses term it, and that the damage amounted to the sum named in the complaint.
The principal ground urged for reversal is that, under the clause in the bills of lading exempting the initial carrier from liability, except for loss occurring on its own line, there can be no recovery, for the reason that the evidence does not show that any loss occurred while on appellant’s line of railroad, and that the court not only erred in refusing to give a peremptory instruction, but also erred in refusing to give other requested instructions submitting that issue to the jury. In making this contention, counsel either overlooked or ignored the statute of this State, patterned to some extent after the Federal statute, making the initial carrier issuing the bill of lading liable for any loss or injury occurring during transportation over the line of a connecting carrier. Crawford & Moses’ Digest, § 924. This statute provides that “when a railroad or other transportation company issues receipts or bills of lading in this State the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be liable for any loss or. damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may pass, and the common carrier, railroad, or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company through whose negligence the loss, damage or injury may be sustained.” Most of the numerous assignments of error are settled by the application of this statute, for the case was apparently "tried below by appellant’s counsel on the theory that there was no liability unless it was shown that the loss occurred on appellant’s own line.
It is also insisted that the court erred in refusing to make the Arkansas Central Railway Company, the Director-General and the Missouri Pacific Railway Company, defendants. It is not shown why the Director General was sought to be made a party, but it is contended that the Arkansas Central Railway Company was a proper party, so that appellant could have judgment over and against it on proof that the loss occurred on its line. The statute does not require that the connecting carrier be made a party, but merely declares the liability of the connecting carrier to the initial carrier. There was no error in refusing to make the' connecting carrier a party, for under the statute the right of action against the connecting carrier is preserved.
Error is assigned in the refusal of the court to give several instructions relating to the question of congestion of traffic to the extent that there was an interference in obtaining cars for shipment of commodities. This is not a suit for failure to furnish cars, but is one for damage which occurred during transportation where the carrier had received the commodity for transportation and given a bill of lading. Under those circumstances, the carrier cannot excuse itself by showing difficulties or interferences in procuring cars for shipment.
It is contended that the court erred in refusing to give the following instruction:
“When the injury for which compensation is sought was occasioned by different causes, for only one of which the defendant is individually responsible, the burden of proof is upon tlie plaintiff to distinguish the damage resulting from the cause for which the defendant is responsible from thalj resulting from the other causes; and if the plaintiff has failed-in this, your verdict should be for the defendant; and damages cannot be proved by the opinion or conclusion of witnesses.”
This instruction is erroneous, because it ignores the question of liability for1 concurring negligence. Payne v. Orton, ante p. 307. There was some evidence introduced by appellant tending to show that the cotton was damaged before delivery to the carrier and not after; but this instruction does not submit that issue, and the court was correct in refusing to give it.
Again, it is urged that the court erred in refusing to give certain requested instructions in regard to delay caused by an embargo laid by the compress company at Fort Smith. It is sufficient to say in regard to these assignments that there was no evidence to justify the submission of that issue to the jury.
There are other assignments, which we do not think are of sufficient importance to discuss in detail, as they are covered by the principles hereinbefore announced.
The judgment is affirmed.