56 Ark. 279 | Ark. | 1892
The appellee argues that the proof establishes two uncontroverted grounds for recovery of compensation from the railway for damages to his cotton and cotton seed.
1st. Because of the appellant’s violation of the contract entered into between it and the Swan Lake railway.
2d. Because the appellant received the cotton and cotton seed for transportation and thereafter negligently allowed it to be damaged by exposure to the rain and mud.
The first position is untenable, and all the evidence in relation to it should have been excluded from the jury.
The second position is sound if true in fact, but the fact is that the jury awarded damages in the highest amount that the cotton and cotton seed can be said to have sustained, while the uncontroverted proof is that a part of the damage was incurred after the property had been taken from the company’s possession under writs of attachment against the appellee — -the company’s responsibility having then ceased. Moreover, the consideration of evidence pertinent to the second branch of the cause was withheld from the jury by the court’s charge.
1. The contract between the two railway companies did not constitute a partnership between nor did it make the Swan Lake railroad the agent of the appellant company for the purpose of receiving freight for and on its behalf. All the cases cited by the appellee on this branch of the case relate to one or the other of those positions, and are therefore inapplicable.
The contract plainly intended to confer a license ^ # upon the Swan Lake railway to run its trains over appellant company’s track between Rob Roy and Pine Bluff. It created no other right, unless it was to limit the appellant’s rights to make certain charges for freight and passengers. If the appellant violated its contract, the Swan Lake Railway could recover all damages legally traceable to the unwarranted breach. But if that company had been the owner of the cotton and cotton seed in question, and were substituted for Neel as plaintiff in this cause, the violation of the contract would not warrant the recovery of damage occasioned by the exposure of the cotton to the mud and rain, because the violation of the contract was not the proximate cause of that injury. The actionable injury was the deterioration in the quality of the cotton. The proximate cause of the deterioration was the exposure to the rain and mud, and not the violation of the contract by tearing up a rail. If the cotton had been properly cared for, the delay would not have caused any deterioration in quality, and the market price is shown to have advanced pending the delay. The only injury in proof came from the failure to properly care for the property. But “in actions of this description the injury complained of must be shown to be the direct consequence of the defendant’s negligence. This is the only practical rule which can be adopted by courts in the administration of justice. It is not enough that the act charged may constitute one of a series of antecedent events without which, as the result proves, the damage would not have happened.” Hoadley v. Transportation Co., 115 Mass. 304.
The rule is illustrated by a variety of cases, and is sustained by an unquestioned line of authority. Little Rock Railway Co. v. Talbot, 47 Ark. 97 ; Martin v. Railway Co. 55 ib. 510 ; St. Louis, etc., Railway v. Commercial Insurance Co. 139 U. S. 223 ; Dubuque Wood Co. v. Dubuque, 30 Iowa, 176.
If the Swan Lake Company in the case supposed could not recover, of course Neel, the appellee, could not; for a derivative right through that company, which is a party to the contract, is the most that could be claimed for him, if it be conceded that he can derive any right through the contract. See 1 Shearman & Redf. Neg. sec. 118 ; 2 Whart. Cont. sec. 786.
2. The contract imposed no obligation upon the appellant to receive or care for the cotton, etc., and the duty to do so — the violation of which the second position assumes — must be sought under its general obligation as a common carrier.
No bill of lading was issued by the appellant company for any of the 300 tons of cotton seed, or for forty odd bales of cotton. At what time the company accepted this property for transportation, if ever, is not certain from the evidence. But it did not become responsible for the custody or care of it until it was accepted. Hutchinson, Carriers, secs. 82, 94-5.
If the company wrongfully refused to accept it when tendered, that would not lustify the shipper m abandon-_ j y jrjr ing the property or in leaving it exposed to the ravages of the weather at the carrier’s expense. It would still be the shipper’s duty to preserve the property, and it would be his right to recover the reasonable expense therefor of the carrier, together with the proximate damages for the delay. But the damage resulting from his own want of care in failing to' provide proper protection for his property is not the result of the delay or of the .carrier’s violation of its public obligation to receive and transport. He cannot visit that loss therefore upon the company. Houston, etc., Railway v. Smith, 63 Texas, 322.
The appellant requested the court to charge the jury substantially to that effect, but the court refused to do so. That was error.
The residue of the cotton was carried to Rob Roy by the Swan Lake Railway, and was allowed to remain where it was unloaded by its employees until it was attached by Neel’s creditors. The testimony of one of the employees of the Swan Bake Company tends to prove that it was received by the agent of the appellant company at Rob Roy for shipment as rapidly as it arrived there. But the testimony of Neel, the appellee, tends to prove that it was held by the Swan Bake Railway in the expectation that that company would be able to transport it to Pine Bluff on its own trains, and that from time to time thereafter bills of lading were issued for it by the appellant. The court refused to charge the jury that if they believed that phase of Neel’s testimony to be the true state of the case, there could be no recovery against the appellant for any damages which accrued prior to the issuance of the bills of lading. It is manifest that the court ought so to have charged the jury unless the clause in the bills of lading which recites that the cotton for which they were issued was received “ in apparent good order ” precludes the carrier from showing that the cotton was damaged before it was received by it.
There is some obscurity and probably conflict in the statement of the law upon this subject by the adjudged cases and the text writers. The authorities all agree that neither the clause “in good order ” nor “ in apparent good order ’ ’ precludes the carrier from showing that the goods were damaged when received, if the injury was invisible or latent. But some of them intimate, if« they do not state, that proof of a visible or patent injury is inadmissible in the face of such a clause. The true rule, as it appears to us, is that the clause “ in apparent good order ” refers only to the external condition of the goods, and as between the original parties is only prima facie proof of the true condition of the goods when received, like any other recital or statement of fact in a receipt not amounting to a contract. Porter, Bills of Lading, sec. 43; Hutchinson, Carriers, secs. 122, 125. The question is ably discussed, and the reasons for the rule clearly stated, in the case of Witzler v. Collins, 70 Me. 290.
In charging the jury upon this subject, however, it should be made plain that the carrier is liable for damages accruing to goods received for shipment from the time they are received and not from the date of the bill of lading only. If the evidence warrants a difference of opinion about the fact, it is for the jury to determine whether the goods were actually received before the bill of lading issued.
Other points are pressed upon our consideration by the appellant, but those determined are the cardinal questions in the cause, and when the errors as to them are pointed out, the court is not apt to go wrong upon a new trial.
Por the errors indicated, the judgmient is reversed, and the cause will be remanded for a new trial.
It is so ordered.
