82 Ark. 143 | Ark. | 1907
(after stating the facts.) The contract of shipment, as evidenced by the bill of lading, was entered into between appellant and appellee. It was for through shipment over appellant’s 'line and connecting carriers from Alma, Ark., to Kansas City, Mo. Appellant having accepted the berries for through transportation, it was its duty to furnish cars suitable for the purpose. Strawberries were perishable goods, and, appellant having undertaken to transport them to market, it was its duty to furnish cars especially adapted to the preservation of such goods during the time required for their .transition from the place of shipment to the place of destination under the contract.
“If,” says Mr. Hutchinson, “the goods are of such a nature as to require for their protection some other kind of car than that required for ordinary goods, and cars adapted to the necessity are known and in customary use by carriers, it is the duty of the carrier, where he accepts the goods, to provide such cars for their carriage. Hutch. Car. (3d Ed.), § § 505, 508; Beard v. Ill. Cent. Ry. Co., 79 Ia. 518; Chicago & A. Rd. Co. v. Davis, 159 Ill. 53; St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597.
It is the contention of appellant that it discharged its duty to appellees when it furnished a refrigerator car, and that the duty of icing the car, under the evidence, devolved upon the American Refrigerator Transit Company, the owner of the car. The contention is unsound, as shown in New York, Philadelphia & Norfolk R. Co. v. Cromwell, 49 L. R. A. 462. That was a case that involved the transportation of strawberries. The court said: “The California Fruit Transportation Company, for a consideration, furnished its cars to the plaintiff in error [the railway company.] These cars were agencies or means employed by the plaintiff in error for carrying on its business and performing its duty to the public as a common carrier, one of which was to provide suitable cars for the safe and expeditious carriage and preservation of the freight it undertook to carry. A railway company can not escape responsibility for its failure to provide cars reasonably fit for the conveyance of the particular class of goods it undertakes to carry by alleging that the cars used for the purposes of its own transit were the property of another. The undertaking of the plaintiff in error [railway company] was to properly care for and safely carry the fruit of the defendant in error, and it is immaterial that the cars in which it was carried were owned by the California Fruit Transportation Company, or that such company undertook to ice said cars or to pay for the ice. As between the plaintiff in error and defendant in error, the California Fruit Transportation Company and its employees were the agents of the plaintiff in error. So far as the defendant in error was concerned, the plaintiff in error was under the same obligations to care for the fruit that it would have been had the refrigerator cars belonged to it.”
It matters not in the case at bar that the refrigerator car belonged to the American Refrigerator Transit Company, an independent contractor. Appellees had no contract with it to furnish cars or to ice them when furnished. Their contract was with appellant to furnish suitable cars; and the evidence was ample to support the verdict, that appellant not only undertook to furnish the car, but also to ice the same. Even if the law did not impose this upon appellant as a duty, the proof shows that it undertook, for a valuable consideration, to furnish refrigeration as well as the car. The sum of $50 was charged and paid for that service to appellant.
The evidence was sufficient to warrant the jury in finding that appellant negligently failed to perform this service, that it failed to carry out its contract to ice the car and thus to furnish a suitable car.
True, in the case of connecting carriers the presumption is that the delivering carrier caused the injury. Kansas City S. Ry. Co. v. Embry, 76 Ark. 589; St. Louis, I. M. & S. Ry. Co. v. Marshall, supra; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 114; St. Louis S. W. Ry. Co. v. Birdwell, 72 Ark. 502. But this presumption only obtains in the absence of proof locating the negligent carrier. Here the evidence warranted the jury in finding that appellant was negligent in failing to use ordinary care to see that the car was kept properly iced at Van Burén before it started for Kansas City.
Finding no error, the judgment is affirmed.