| Ark. | Mar 12, 1923
(after stating the facts). It is first insisted by counsel for the defendant that the court should have directed a verdict in favor of the railway company because the notice required by paragraph 8 of the live stock contract of shipment was not given by the plaintiff.
The live stock contract in question involves an interstate shipment of hogs. The Supreme Court of the United States has held that a stipulation in a contract which is governed by the Carmack Amendment for the interstate transportation of live stock releases the carrier from all loss or damage unless a written claim therefor is made on the carrier’s freight claim agent within ten days after unloading the live stock. St. L. I. M. & S. R. Co. v. Starbird, 243 U.S. 592" date_filed="1917-04-30" court="SCOTUS" case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Starbird">243 U. S. 592; Erie Railroad Co. v. Stone, 244 U.S. 332" date_filed="1917-06-04" court="SCOTUS" case_name="Erie Railroad v. Stone">244 U. S. 332, and Southern Pacific Company v. Stewart, 248 U.S. 446" date_filed="1919-01-13" court="SCOTUS" case_name="Southern Pacific R. Co. v. Stewart">248 U. S. 446.
We do not think, however, the facts and circumstances as they appear from the record bring this case within the principles of law decided in the cases just cited. In the present case the hogs were not in charge of the shipper or his agent, and they were never delivered to the consignees. The undisputed evidence shows that the railroad company delivered the hogs to another company than the consignees, and that they were never carried to their destination. Hence the provisions of paragraph 8 of the contract of -.shipment do not apply, under the facts presented by the record.
It is next contended that the court erred in giving instruction No. 3, which is as follows:
“You are instructed that, if you find from the evidence that the delay in the delivery at St. Louis was occasioned solely by a strike on the part of the employees of the Terminal Railroad Company in St. Louis, then your .verdict should be for the defendant. But, on the contrary, if you find the delay was the result of the combined strike of the employees of the Terminal Railroad Company and the employees of the Missouri Pacific Railroad Company, then that would be no defense in this action on the part of the railroad, and your verdict should be for the plaintiff.”
The contention of counsel for the defendant that the court erred in giving this instruction is based upon paragraph 6 of the contract of shipment, which is copied in the statement of facts.
There is no evidence in the record tending to show that the negligence of the railroad company in failing to deliver the hogs was due to any violence on the part of the strikers on the terminal carrier or any connecting carrier. Hence it is not necessary to decide whether or not violence on the part of the strikers would excuse the railroad company. It is sufficient to say that the general rule is that the carrier is liable for the negligence of its servants during the course of their employment, and therefore if its employees go on a strike, abandoning the perf ormance of their duty and causing the delay in the transportation of goods, the carrier is liable. 10 C. J., par. 414, p. 293, and Railway Co. v. Nevill, 60 Ark. 375" date_filed="1895-03-30" court="Ark." case_name="Railway Co. v. Nevill">60 Ark. 375.
But, as we have already seen, the shipment was an interstate one, 'and is governed by the provisions of the-act of Congress and the decisions of the United States Supreme Court construing the same. In addition to the authorities above cited, see Chicago & E. I. R. Co. v. Collins Produce Co., 249 U.S. 186" date_filed="1919-03-03" court="SCOTUS" case_name="Chicago & Eastern Illinois Railroad v. Collins Produce Co.">249 U. S. 186.
In the case of Adams Express Co. v. Croninger, 226 U.S. 491" date_filed="1912-03-11" court="SCOTUS" case_name="Adams Express Company v. Croninger">226 U. S. 491, the court said: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107" date_filed="1866-02-26" court="SCOTUS" case_name="York Company v. Central Railroad">3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357" date_filed="1873-10-20" court="SCOTUS" case_name="Railroad Co. v. Lockwood">17 Wall. 357; Rank of Kentucky v. Adams Express Co., 93 U.S. 174" date_filed="1876-11-27" court="SCOTUS" case_name="Bank of Kentucky v. Adams Express Co.">93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U.S. 331" date_filed="1884-11-24" court="SCOTUS" case_name="Hart v. Pennsylvania Railroad">112 U. S. 331, 338. The rule of common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this, and he was liable for any loss and damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through, any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.”
It follows that the carrier may, by fair and reasonable-agreement, restrict its liability to losses which are the proximate result of strikes on its own road, or that of its connecting carrier, where the loss is not occasioned by the negligence of the carrier in the premises, or the carrier could not, by reasonable diligence, have prevented the loss. Paragraph 6 of the contract of shipment is the clause which releases the company from liability by reason of delay in the transportation of live stock caused by strikes on its line or on the line of any of its connecting carriers. But, as we have already seen, the railroad company could not exempt itself from liability on account of its own negligence, and the court should have submitted to the jury that question.
It also- follows that the court erred in limiting the right of the defendant to exemption from liability to a finding that the delay was occasioned solely by a strike of the employees of the Terminal Railroad Company. The Interstate Commerce Act extends to all terminal facilities and instrumentalities. Chicago Junction Railway Company v. United States, 226 U.S. 286" date_filed="1912-12-16" court="SCOTUS" case_name="United States v. Union Stock Yard & Transit Co. of Chicago">226 U. S. 286. That case also holds that the duties of a common carrier in the transportation of live stock begin with -their delivery to be loaded and end only after unloading and delivery, or offer of delivery, t-o the consignee. It follows that a strike on any of the connecting carriers, singly or together, would, under the terms of the contract, release the initial carrier from liability, except in case of negligence with regard to averting the loss by reason of the strike on its own part or on tlie part of any of its connecting' carriers.
Therefore the court erred in giving instruction No. 3 as set forth above, and for that error the judgment must be reversed, and the cause remanded for a new ‘trial.