| Ark. | Mar 24, 1924
(after stating the facts). It was the contention of the railroad company that it furnished a car with standard ventilation and kept it closed in the proper manner during the whole period while the potatoes were in its charge for transportation. Hence it contends that the freezing of the potatoes was caused by the act of God, or the inherent nature of the goods shipped.
Counsel for appellant then earnestly insist that the court erred in instructing the jury that the burden of proof in these respects was upon appellant.
We cannot agree with counsel in this contention. According to the evidence for the appellees, the potatoes had not been frozen at the time they were delivered to the carrier for shipment, and were in good condition. They were badly frozen when they -arrived at their destination in Chicago, which was the first time they had b°en inspected from the time they had been delivered to the railroad cornu any for transportation. If no explanation whatever is given as -to how the injury occurred, a presumption of negligence arises as a matter of fact; which is sufficient to justify a recovery in cases where there is no other proof than that of the delivery of the goods to the carrier in good condition, and their arrival at the point of destination in a damaged condition.
Whenever the carrier accepts goods for shipment to a point on another line in another State it is conclusively treated as having been made a through contract. The burden of proof that the damage to the goods in transit resulted from some cause for which the initial carrier was not responsible, in law or by contract, is upon the carrier. The carrier and its agents, having received possession of the goods in good condition, were charged with the duty of delivering them in the same condition, or explaining why they could not do so. The reason is that the carrier not only has the better means, but often the only means, of making such proof. Galveston, Harrisburg & Sam Antonio Ry. Co. v. Wallace, 223 U.S. 481" date_filed="1912-02-19" court="SCOTUS" case_name="Galveston, Harrisburg & San Antonio Railway Co. v. Wallace">223 U. S. 481; Chicago & E. I. R. Co. v. Collins Co., 248 U. S. 186; St. L. I. M. & S. R. Co. v. Pape, 100 Ark. 269" date_filed="1911-07-03" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Pape">100 Ark. 269; and Chicago, R. I. & Pac. Ry. Co. v. Walker, 147 Ark. 109" date_filed="1921-01-24" court="Ark." case_name="Chicago, Rock Island & Pacific Railway Co. v. Walker">147 Ark. 109.
Counsel for appellant also objects to an instruction given at the request of appellees, submitting the negligence of appellant to the jury. But we do not deem it necessary to set the instruction out, for the reason’that the objection to it is based mainly upon an alleged lack of evidence to support it. In other words, it is claimed that the testimony for appellant overcomes any prima facie case made by appellees. We cannot agree with counsel in this contention. It is true that the testimony for appellant tends to show that it furnished a car with standard ventilation, and that it was closed in such a way that the sweet potatoes could not have frozen while the car was in the possession of the carrier for transportation; but this testimony can not be said to be undisputed. According to the evidence of appellees, the sweet potatoes were delivered to the carrier at Nashville on the 6th day of November, 1920, and had not been frozen up’to that time. They had only been dug á few days nrior to their shipment, and the weather was such that they could not have been frozen while lying in-the field after they were dug’. The car was placed for unloading on the team track in St. Louis on November 12. On that day the thermometer was down to 19 degrees, and on the nest day the temperature was the same. The jury might have inferred that the potatoes were frozen during these two days.
It is true that appellant introduced testimony tending to show that the car was kept closed on these two days, and that the potatoes would not have frozen while the car was kept closed in the proper way. The jury, however, might not have believed the witnesses in this respect. The potatoes were badly frozen when they arrived in Chicago, and it is evident that all the witnesses cannot be telling the truth about the matter. It is the theory of appellant that the potatoes had become frosted before they were shipped, and they were not frozen during the course of their transportation while in the hands of the carriers. The fact was that they were frozen, and it was within the peculiar province of the jury to believe the witnesses for appellees and to draw all legitimate inferences from their testimony. Therefore we are of the opinion that the evidence for appellees, if believed by the jury, was sufficient to warrant a verdict in their favor. In this connection it may be stated that the court submitted to the- jury, in an appropriate instruction, the theory of the appellant.
Counsel for appellant assign as error the action of the court in giving instruction No. 5 on the measure of damages. The instruction reads as follows: “If you find for the plaintiffs in this case you will assess their damages at such a sum as you find from the evidence would be the difference between what the potatoes sold for in Chicago and what they would have sold for on that market if they had reached there in a sound and undamaged condition, with 6 per cent, interest thereon from date of arrival to present time.”
We do not think any prejudice resulted to appellant from the giving of this instruction. According to the .testimony of the consignees at Chicago, Ill., the market value of sweet potatoes iu good .aoudition ou the day the sweet potatoes in question arrived there was $2.25 per bushel. There were 611 bushels in the oar. The potatoes were so badly damaged by freezing that they had to be rehandled. Four hundred and eight hampers of them had to be dumped. The consignees sold the balance to the best advantage possible, and were only able to realize $250.'69 out of them.
This, was the only testimony introduced on the measure of damages. The verdict of the jury was for $624.06, which was a much less amount than they might have found in favor of appellees. The instruction, when considered in .connection with the proof introduced, was in accordance with the principles of law laid down by this court in other cases. Chicago, R. I. & P. Ry. Co. v. Burkholder & Tuggle, 129 Ark. 316" date_filed="1917-06-04" court="Ark." case_name="Chicago, Rock Island & Pacific Ry. Co. v. Burkholder">129 Ark. 316, and Chicago, R. I. & P. Ry. Co. v. Walker, 147 Ark. 109.
It follows that the judgment must be affirmed.