St. Louis, Iron Mountain & Southern Railway Co. v. Jacobs, 70 Ark. 401

70 Ark. 401 | Ark. | 1902

Wood, J.,

(after stating the facts.) 1. There was evidence to support the verdict on the question of negligence. As to who had the burden under the evidence was properly submitted to the jury.

2. As to whether or not the cattle were injured by reason of their own viciousness, or the negligence of the carrier, was also properly submitted to the jury under full and fair instructions.

3. Jt is contended that there is no evidence of the value of the stock injured, and, consequently, nothing to show the extent of plaintiffs damage.

Paul Probasco testified that he was a cattle herder, shipping and preparing cattle for market; that he had been so engaged for five years; that on the 2d day of November, 1899, he was engaged in handling cattle for W. H. Jacobs & Co. in and near Little Bock; that he inspected plaintiffs cattle that had been shipped from Vernon, Texas, on the morning of their arrival; that he found the cattle in a bad and injured condition; he found all of the cattle more or less injured; one of them was disemboweled and killed; one died shortly afterwards; four were crippled and rendered' wholly unfit for market; and the balance were injured in various ways to such an extent that they could not be prepared for market; that one bull was in such a reduced condition that care could not bring him out; that of the entire lot there was bui one steer — a yearling — that ever recovered sufficiently to prepare for market; that, from his experience in shipping cattle, the cause of the injury to the cattle was the delay in transportation, rough handling of the ears in which they were confined, neglect to water and feed them properly, recklessly allowing them to get down in the car and be trampled upon by one another; the weaker ones, when thrown down by rough handling of the cars, were permitted to remain down until they were trampled upon, and thus injured; that the cattle were what are called feeders, that is, cattle ready to be fed and prepared for market to be sold for beef and slaughter house purposes; that, judging from his experience in marketing cattle, and his knowledge of the market at the time, and the extent and character of the injuries, he would say that these cattle, were damaged to the extent of $300. Specific objection was made to the last part of the above testimony. There was no proof of the market value of “feeders,” as these cattle were designated. Nothing to show the value of such cattle at the time they were received by the appellant for transportation, nor at the time they were delivered to appellees. A simple statement of the market value of such cattle in good condition would have enabled the jury to properly estimate the damage which had accrued to appellees by reason of the negligent handling of the cattle in transportation. The details of the manner in which the cattle were handled were before the jury, and the nature and extent of the injuries which they had received. As was said by this court in St. Louis, Iron Mountain & Southern Railway Company v. Law, 68 Ark. 224, “the jury should have been left to determine the damages according to the facts, uninfluenced by the opinions of interested witnesses.” The proper criterion for determining the amount of appellee’s damages was not before the jury, and we cannot know to what extent the verdict was influenced by the opinion of the witness Probasco. The data upon which he based his opinion should have been given, rather than the opinion itself. This point is ruled by St. Louis, Iron Mountain & Southern Railway Company v. Law, 68 Ark. supra.

4. The provision of the contract requiring that the shipper give written notice of the place and nature of the injuries to the conductor in charge of the train, or the nearest station or freight agent of the carrier, and that suit shall not be brought after ninety days from the injury, was waived by appellant. The object of requiring notice of the place and nature of the injuries is to give the carrier an opportunity for a full and fair investigation of such injuries when and where it will be most certain, easy and expeditious. Kansas & A. V. Ry. Co. v. Ayers, 63 Ark. 336. The notice is required to be in writing, so that the nature of the shipper’s •grievance may be definitely and clearly stated. But where it is shown that the proper agents had verbal notice upon which they acted, promptly making all the investigation desired, and without demanding any written notice, it will be taken as a waiver of the written notice. The provision is for the benefit of the carrier, and he may waive it if he chooses. The court properly instructed the jury on this point. Rice v. Kan. Pac. Ry. 63 Mo. 314. See, also, Western Ry. Co. v. Harwell, 91 Ala. 347.

The questions as to whether or not the provision was reasonable and fair requiring suit to be brought within ninety days after the injury, and whether or not such provision had been waived by appellant, were submitted to the jury upon the evidence, at the request of appellant. Appellant, therefore, cannot now complain of the verdict on these questions.

We find no error in any of the instructions.

For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.