83 Ark. 502 | Ark. | 1907
(after stating the facts.) The issue of fact as to whether the injury was caused by the negligence of the railroad or the owner was properly submitted to the jury, and there are sufficient facts to sustain a verdict upon that issue either way. Hence the court must accept the jury’s finding and assume that it was due to a defect in the platform over which the mare was being loaded under the directions of the appellant which caused the injury.
The court excluded the contract on the alleged ground that it was unjust, unreasonable and oppressive, and refused to allow the same to be read in evidence to the jury. This ground is not tenable. The consideration recites that it is based upon a consideration, viz., a reduced rate. This being true, the stipulations reducing the amount of liability, changing the respective duties of the carrier and shipper in certain designated respects, and fixing limitations on the time of bringing 'the action, are valid, as has frequently been held. St. Louis, I. M. & So. Ry. Co. v. Lesser, 46 Ark. 236; St. Louis, I. M. & So. Ry. Co. v. Weakly, 50 Ark. 397; Railway Co. v. Cravens, 57 Ark. 112; Railway Co. v. Spann, 57 Ark. 127; St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 339; St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353; St. Louis S. W. Ry. Co. v. Butler, 82 Ark. 469.
All the facts necessary to make this contract a valid one are recited in the face of it. It -was said in the Pearce case, 82 Ark. 353, supra, that .it was improper to permit a plaintiff to testify that he had signed such a contract without reading it, and that the agent did not inform him that there was another rate -under a contract of unrestricted liability. “The agent was not bound to so inform them unless requested to do so, as information was obtainable from other sources provided by law; unless the agent refused, upon demand, to accept the shipment at another rate under a contract for unrestricted liability, there is no reason for holding the contract to be void, as this court has held that the contract is valid and binding where it is not forced upon the shipper.”
But does the contract control in this case? The appellant argues that the written contract should relate back and cover the injury to the animal, which occurred some two hours before the contract was executed, on the theory that a verbal contract was then entered upon, and that that verbal contract was later reduced to writing. But the facts do not sustain the principle invoked. The preliminary arrangements only extended to ascertaining whether the car could be obtained, and what the rate would be for it. There were no negotiations fhen as to the classification of the outfit, which finally settled the rate, or as to the-terms or conditions or limitations which entered into -the contract as made in the evening. The mere privilege to ship at a given time, at an approximate price, was accorded; and Van Burén was told that the contract could not, or need not, be signed until the stock was loaded. The company’s agent who signed the contract positively fixes the time of contracting at 7:30 p. m., and he does not seem to have known of the preliminary arrangement made with the other agent in the forenoon.
“The liability of the carrier for stock to be transported over its line commences when the animals are placed in the usual place for receiving them for shipment to await shipment.” Moore on Carriers, page 512. There is -a common-law liability upon carriers of live stock requiring them to furnish the necessary facilities for loading and discharging stock at their yards and stations, and all other facilities necessary to the safe and convenient loading and unloading of stock. Moore on Carriers, 500-1. This common-law liability can only be released or limited upon a consideration; and where was the consideration in this case? The injury was done before the contract was entered into. Where damages have already accrued by the negligence of the carrier before the contract is entered into, it has been several times held by this court that such pre-existing damages are not covered by the stipulations in the contracts releasing or limiting liability. St. Louis, I. M. & So. Ry. Co. v. Law, 68 Ark. 218; St. Louis, I. M. & So. Ry. Co. v. McNeil, 79 Ark. 470; St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353.
This statement from St. Louis & S. F. Rd. Co. v. Pearce, supra, fits the facts here, an.d is controlling: “The contract in this .case was based upon a reduced rate, but the evidence shows that it was a printed form of contract given to all shippers alike who desired the reduced rate upon the stipulated terms. It is unreasonable to require a shipper to release the carrier from a liability already accrued on account of negligence or failure to perform a duty owing to shippers. If the defendant was liable to the plaintiffs for failure to furnish cars, then it had no right to require a release of this liability before according to them the privilege of shipping upon terms the same as those given to other shippers who asserted no claim for damages. The claim for damages already accrued was a distinct matter, and was not a subject to be included in a contract for shipment subsequently entered into, unless based on a separate consideration for the release of liability.”
This contract therefore was not properly evidence in this case, and of course the defense based upon it went out with it.
It is argued that there was error in admitting testimony as to the market value of the' mare in Memphis without sufficient foundation having been laid for such evidence, and some other matters are pointed out, but the court finds none of these prejudicial.
Judgment is affirmed.
