82 Kan. 308 | Kan. | 1910
The opinion of the court was delivered by
This was an action by the L. A. Watkins Merchandise Company to recover damages from the Missouri, Kansas & Texas Railway Company for the loss of coal tar which the railway company undertook to transport from Emporia, Kan., to Denver, Colo. The tar was lost after it had been loaded in a car and intrusted to the railway company for shipment. On the first trial of the case the district court directed a verdict in favor of the plaintiff, but upon an appeal to this court it was held that there was testi
There is nothing new or substantial in the objections to testimony, nor is there any good cause to complain of the instructions. There was a stipulation in the bill of lading that any claim which the shipper might have against the railway company on account of loss or damage occurring on its line should be presented within thirty days after the loss or damage was sustained. This provision was evidently intended for the benefit of the railway company, in order that it might inquire into the cause of the loss and its liability therefor. The stipulation is not a material consideration in this case. The railway company had notice of the injury to the tank car and of the resulting leakage within a few minutes after it occurred. The agent of the company inspected the break and had ample opportunity to gain full information as to the condition of the car and the cause of the leakage, and also to use any available means to prevent further loss. The appellee could not have given the railway company any more information than it already possessed. Negotiations were promptly begun by appellant with reference to the claim and with a view of fixing the responsibility for the loss upon the Santa Fe railway company. The officers of appellant seemed to think that it could not shoulder the responsibility upon the Santa Fe railway company until a judgment against appellant had been rendered.