88 Ark. 138 | Ark. | 1908
Lead Opinion
(after stating the facts). 1. The first matter submitted is that there should have been a peremptory instruction in favor of the defendant. It was held on the former appeal that the undisputed testimony showed that the railroad company exercised reasonable diligence in furnishing facilities and in transporting the cattle to the destination after delivery to it; and it was pointed out that the law does not require railroads to keep engines and cars at stations at all times to move freight offered for shipment; that this would be an unreasonable requirement; and that the requirement of reasonable care and diligence 'had been met in this case in furnishing the transportation after the cattle were delivered. The case, however, had been tried upon an issue which was not in the pleadings, and to the evidence to sustain it the defendant had objected; and for that reason the judgment was reversed. St. Louis & S. F. Rd. Co. v. Vaughan, 84 Ark. 311. It was held that under the undisputed facts no other cause of action appeared, and this one had been improperly introduced. It must be held that the facts adduced on behalf of the plaintiff were-sufficient to make out a charge of negligence. Mr. Hutchinson says: “He must, at' his peril, inform the shipper of the necessary delay, that the shipper may exercise his own discretion as to the propriety of making the shipment.” 2 Hutchinson on Carriers, § 496. This principle was applied in Kansas & Arkansas Valley Rd. Co. v. Ayres, 63 Ark. 331.
While no negligence can be predicated upon the failure to ■get out the cattle earlier than they were shipped, yet the facts testified to by the plaintiff show that he was assured before seven o’clock in the evening that he could get out his cattle right away, when in fact no regular train was due to leave until 9:3o the next morning, and no special train could be got to him short of eight or nine hours. Upon this he relied, and left his cattle load■ed in the cars, instead of taking them out and caring for them during the delay, as he would otherwise have done. The undisputed testimony is that cattle kept loaded in cars standing still will be materially injured by such delajc Especially would this be true on a cold and rainy night in midwinter. There was sufficient evidence to have sent this question to the jury.
II. It is insisted that the third instruction given by the court of its own motiop is erroneous, in that it assumes certain facts to constitute negligence, when the jury alone, under proper instructions, should determine that. But the instruction, read in the light of the plaintiff’s testimony and the undisputed evidence as to the effect of such delay and the long delay necessary to get them out at the time that the assurances were given of getting them out right away, prevent this criticism of the instruction from being well founded in this instance. If it be error to assume that these facts were negligence per se, that error has been concurred in by the appellant, for the fourth instruction, given at its instance, in another way and in better form, submits the same facts to the jury as a predicate for recovery by the plaintiff if the jury believed such facts to be true.
III. It is urged that the representations of the agent were not the proximate cause of the damage; and it is argued that the evidence shows that the Kansas City Southern yards would not have held more than three cars of- cattle, and that the damage could not have been averted had Vaughan known that the cattle would not be carried out right away. But he testified to facts, which, if believed, showed that he would have cared for his cattle, either in these yards or elsewhere, in a way that would have prevented the injury which they received; and this testimony presented a question for the jury to determine, and was properly submitted upon instructions given at the instance of the appellant.
IV. The provision of the contract to the effect that notice in writing must be given of the damages is also invoked; but there was evidence tending to prove a waiver of this clause, and that question was sent to the jury under proper instructions, framed in conformity to the decision in St. Louis, I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401.
V. It is insisted that the verdict is excessive. The jury gave $734, which the court required the plaintiff to remit down to $600. The limitation of $16 per head, stipulated in the contract, is not exceeded by this verdict. According to the plaintiff’s testimony, twenty of the cattle were dead, and the balance seriously injured and depreciated in value. The difference in value he put at $872. The jury gave less than the testimony warranted, and the circuit court reduced that amount, for what reason is not shown. The court is unable to see wherein the verdict is excessive. It may be that the testimony was not accurate or truthful; but that was a matter to have been argued before the jury, and not elsewhere.
Finding no error in .the case, the judgment is affirmed.
Rehearing
ON REHEARING.
Appellant’s attorneys forcibly reargue the questions disposed of, but after a full consideration of them the court finds no reason for changing the decision or opinion. It is insisted that “the court erred in not upholding that clause in the contract which provided .that the plaintiff would waive and release the defendant from any and all liability for or on account of delay in shipping the stock after delivery of the same to the defendant’s agent, and from any delay in receiving this stock after tender of delivery, as set forth in the seventh instruction requested by the appellant and refused by the trial court.
This contention was not specifically discussed in the opinion, because it was thought that it was necessarily disposed of in the discussion of the other issues. It was held on the former appeal of the case that the railroad company exercised reasonable diligence in furnishing facilities and in transporting the cattle to the destination after delivery to it. Had it been held otherwise, then the question on the contract would have been pertinent. After the reversal of the cause, the complaint was amended ,so as to allege negligence in that the station agent induced plaintiff to deliver the cattle to the defendant on the assurance that a train would soon arrive to take away and transport his cattle; and that the plaintiff, relying upon these assurances, delivered his cattle to the defendant to be transported, and they were negligently delayed at Ashdown for a period of twelve hours. The action was then turned into one against the company for misleading assurances given by its agent which induced the shipment, and not for one growing Out of the shipment itself. The contract relating to the shipment, but it went out of the case when the action was predicated upon the false or negligent assurances which were made by the agent which induced the delivery of the cattle to the appellant company. Therefore, no-discussion was called of the contract itself, nor any consideration of its terms, or whether in fact it was a binding contract.
The motion is overruled.