113 Ark. 215 | Ark. | 1914
(after stating the facts). The appellant contends that the uncontroverted evidence showed that there was an extraordinary demand for stock cars, which prevented, the appellant from being able to supply the stock cars more promptly, and that appellant had an ample equipment of stock cars for use under ordinary conditions and to supply all reasonable demands, and that therefore a verdict should have been directed in its favor.
The testimony of appellant’s chief dispatcher, having supervision of the furnishing of oars on the division from which the shipment in controversy was made, was iiot sufficient to exempt appellant from liability for a failure to furnish the appellees cars for the shipment of their cattle. This testimony, in a general way, shows that appellant was short of cars on this division when demand whs made upon it by the appellees at the particular time when appellees desired to make the shipment of their cattle. That this shortage was because of the increased orders for stock cars, and not having cars to fill them; that the demand was great and unusual on this division. But this testimony does not show, or even tend to show, that the appellant did not have a sufficient number of cars on other divisions which it could have used for the purpose of meeting the increased demand on the division on which Pyatt is situated. Por aught the evidence shows to the contrary, the appellant, by the use of ordinary care, could have sent in cars from other division points, without discommoding shippers at those points, in order to supply the temporary needs of shippers at the station of Pyatt.
Although the demand for stock cars was great and unusual on the division on which Pyatt is situated during the time appellees were seeking to ship their cattle, it was the duty of the appellant to endeavor to meet this unusual demand, and to satisfy the requirements of shippers from that station by exercising ordinary care to have the need supplied.
The testimony upon which appellant grounds its defense against this alleged charge of negligence is not sufficient in law to constitute a defense. .
There was no testimony, by those having in charge the equipment of appellant’s system'with necessary stock cars,' tending to prove that appellant as a system did not have, or by the exercise of ordinary care, could not have had, abundant facilities to meet the requirements of the shippers at all ’Stations on its entire system. The testimony falls short of proving, or” even tending to prove, that appellant could not have furnished stock cars to meet the requirements of shippers at this particular time by the exercise of ordinary care. While it was the duty of appellant’s chief dispatcher at Cotter to supply the demands of shippers for stock cars at the station of Pyatt, yet there is nothing to show that he- exercised ordinary care to have the cars brought in from other points on the system to meet the unusual demands that were made upon him by the shippers at Pyatt. His .testimony only shows that there was a great and unusual demand, and that there was a shortage of cars on his division, but it falls far short of showing any reason for this shortage, and does not show that the shortage might not have been obviated by the exercise of ordinary care upon the part of those whose duty it was to furnish the necessary shipping facilities to meet the demands of all shippers.
There was no testimony, therefore, to warrant the court in submitting to the jury the question as to whether the shortage of stock cars at Pyatt was caused by an unprecedented and extraordinary demand which could not be anticipated by the appellant. The instructions submitting this issue were more favorable to appellant than it was entitled to, and it has no ground for complaint' on account of the instructions of the court or the verdict of the jury on this issue.
The appellant contends that the court erred in permitting testimony tending to prove that others at Pyatt ordered cars after the appellees, and that these shippers received cars for the shipment of their cattle before appellees’ demand was supplied. There was mo error in permitting the testimony tending to prove that other shippers who had cattle for shipment at Pyatt demanded cars after the demand of appellees had been.made upon appellant, and that these shippers were supplied before appellees were furnished with cars. This testimony tfended to prove that appellant had oars to meet the demands of its .shippers, and tended to prove that the failure on the part of appellant to comply with the demand of appellees was not on account of the dearth of cars to meet the requirements of shippers at Pyatt.
There was no error in permitting one of the appellees to testify that the stock depreciated in weight to the extent of fifty pounds per head during the time that the shipment was delayed by reason of the alleged failure of appellant to furnish cars. The witness by whom this testimony was adduced had bought the cattle and had continuously observed them from tbe time be acquired them until they were sold in Kansas City. He was' an experienced stock man, and from bis observation, could testify as a fact as to tbe depreciation of tbe stock in weight. His testimony giving bis estimate of tbe amount of sucli depreciation was competent and proper for tbe jury to consider in determining tbe amount of appellees’ damage by reason of tbe loss in weight of tbe cattle while their shipment was delayed.
Tbe testimony was ample to sustain tbe amount of tbe verdict. Tbe judgment is correct, and it is affirmed.
