141 Ark. 133 | Ark. | 1919
(after stating the facts). The effect of our decisions is that where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed, and submit to the judge the determination of the inferences proper to be drawn from them. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, and St. Louis, I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377.
Counsel for appellants concede this to be the effect of our decisions; but they contend that under the undisputed evidence the court should have directed a verdict for appellants. We do not agree with counsel in this. contention. It is true that, under the evidence adduced by appellants, they made out a case against appellee, but it can not be said that the evidence in their favor is undisputed. The bookkeeper for appellants weighed out 60.000 pounds of cotton seed for the purpose of having the same shipped to Forrest City, Arkansas. These wagons started towards Newark, but the witness did not know whether all or only part of the seed reached their destination. Only two of the haulers testified. They said they hauled the two last loads and that when they placed the seed in the car the car was full up to the roof. A witness who helped load the car said that he was paid by the ton for loading cars of seed and that he was paid by the amount shown in the freight bill or returns to have been received by the consignee at the point of destination. He felt sure, judging from his past experience, that the car in question contained 60,000 pounds of seed. The weight of seed was placed in the bill of lading at 80.000 pounds with this notation, “Weight subject to correction. ’ ’ This evidence was sufficient to have warranted a verdict for appellants, but it is not undisputed. The car was sealed up after it was loaded and carried to its destination at Forrest City, where it was weighed by the railroad company before it was unloaded. Its weight there .was shown to be 40,000 pounds. This was the weight placed in the freight bill which was introduced by appellants without objection. This testimony tended to contradict the other testimony introduced by appellants. The jury might have found from it that, the car having been weighed at point of destination before it was delivered to consignee and the weight being only 40,000 pounds, the other witnesses for the plaintiff were mistaken in placing or estimating the weight of the seed at 60,000 pounds.
Therefore, it can not be said that the testimony in favor of appellants is undisputed, and the judgment must be affirmed.