94 Ark. 407 | Ark. | 1910
(after stating the facts). There was evidence to warrant a finding by the jury that the destination of the shipment was Hampton, Arkansas, on the Thornton & Alexandria Railroad as the delivering line. That being true, the notice given to the agent at Hampton in accordance with the provisions of the contract was sufficient. If, however, the agent at Pine Bluff was the ■ “agent at destination,” so far as appellant 'is concerned, then t’he provisions requiring written notification to be served within one day, etc., is unreasonable and void. The purpose of giving such notice as expressed in the provision is: “To the end that such claim may be fully and fairly investigated” by an examination of the stock before same are removed from the point of shipment or place of destination, and “before such stock is mingled with other stock.” Now, appellant had notice that the ultimate destination of the stock on that shipment was Hampton, Arkansas. It billed the stock through to Hampton. Knowing this, it was unreasonable to require appellee, as a condition precedent to recovery, to give notice to the agent at Pine Bluff. The horses were not unloaded from the car at Pine Bluff. They could not be mingled with other stock there. The appellees had no opportunity to ascertain the full extent of the injury to their horses until they were unloaded at their final destination.
The provision as to notice must be reasonable or it is void. The evidence is undisputed that the horses were billed through to Hampton by appellant. If the contract required the notice to be given the agent at Pine Bluff, we are of the opinion that the notice was unreasonable, and there was no issue therefore to be submitted to the jury. See act of April 30, 1907, p. 558, .§ 3. The court should have so declared it, in this view of the contract, as matter of law.
There was no prejudicial error in any of the instructions on the question of notice. They were more favorable to appellant than the undisputed evidence warranted.
While the instructions under consideration told the jury to “find for the plaintiff” if they found that notice was given, etc., it is evident, when all the other instructions are considered,' that the count meant to tell the jury by the first instruction that they would find for the plaintiff on the issue raised by that instruction if they found certain facts, etc. The court did not mean to tell the jury to find generally for the plaintiff on all issues of fact presented if they found in favor of plaintiff on the proposition of notice. If appellant conceived such to be the meaning of the instruction, in fairness to the court specific objection should have been made to it on this ground. St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564; St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; Rock Island Plow Co. v. Rankin, 89 Ark. 24; Arkansas Midland Rd. Co. v. Rambo, 90 Ark. 108.
There was no error in the giving of instruction number 2 at appellee’s request. True, the instruction was abstract on the question of appellant’s negligence elsewhere than at Coffeyville, Kansas. There was no evidence of negligence elsewhere than at Coffeyville. But, as the jury were required to base their finding of negligence on the evidence, we do not see that they could have found that appellant was negligent elsewhere than at Coffeyville, and appellant is therefore not prejudiced by the prayer.
There was evidence to warrant the court in submitting to the jury whether appellant was negligent at Coffeyville, Kansas, in the manner charged in the complaint. The instruction was not erroneous in that it ignored the question of notice, for the reasons already announced in passing on instruction number one.
There was no prejudicial error in giving the third prayer of appellees. It was an interstate shipment, and the contract limiting the liability in case of loss to a certain maximum sum was void. Chicago, R. I. & P. Ry. Co. v. Miles, 92 Ark. 573; St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154; Kansas City S. Ry. v. Carl, 91 Ark. 97.
W'hat we have already said determines the other questions presented by appellant against its contention. There is no reversible error, and the judgment is affirmed.