117 Ark. 163 | Ark. | 1915
The plaintiff seeks in this case to recover from the defendant railway company damages sustained by reason of injury to a shipment of a carload of peaches from Camden, Arkansas, to Burlington, Iowa. Plaintiff owned a fruit farm a few miles out of Camden, ■aaid in July, 1912, having a carload of peaches to ship, applied to defendant’s agent for a car properly iced. That was on July the 17th or 18th, and the shipment was to be made on the 20th. The agent agreed to have the car ready for the peaches to be loaded into it on the morning of the 20th, and it was understood that plaintiff was to gather 'his peaches and have them ready for shipment on that date. He gathered his peaches on the 19th and hauled them to Camden and stored them in a hay barn ready to be loaded on the cars the next clay; but when he got ready to load them on the morning of the 20th, he found that the car had not been iced according to the agreement made with him by the agent. He called upon the agent and a controversy arosebetween them concerning the failure to ice the car and as to whether he should load the peaches into the car without it being iced. There is a conflict in the testimony as to the substance of the conversation between the two—the plaintiff and the agent. The plaintiff testified that he loaded the peaches under protest and insisted that he should have an iced car, as it was very warm weather and he could not wait any longer for the car to be iced. The agent testified that- he was about to have the car iced there at Camden and instructed the plaintiff not to put the peaches into the car until it could be iced. 'There is a further conflict in the testimony of the two men as to when the car was finally iced and the amount of ice put into the bunkers. The agent says it was deed about 1:30 o’clock on the 20th, and that the ice company reported to him that eight thousand pounds of ice was put in the bunkers, which was sufficient as the initial icing; but the plaintiff testified that the bunkers were not more than half full and that it was 3:30 or 4 o’clock in the afternoon before the ice was put in. The plaintiff went to Burlington ahead of the car and when he reached there he found (that the market there for peaches was overstocked and in such condition as not to justify trying to sell them and he applied to the agent of the connecting carrier and had the shipment diverted through to St. Paul and thence to Minneapolis. The ear was found to be well iced when it reached Burlington, and also when it reached St. Paul and Minneapolis, but the peaches were so badly damaged when they reached Minneapolis that they had to be sold at a price that was scarcely sufficient to pay the freight bill. The undisputed evidence was that the peaches were in good condition when loaded into the oar at Camden and that they were almost worthless for marketing purposes when they reached St. Paul. Peaches of that kind in good condition were worth sixty-five cents per basket at Minneapolis the day the shipment reached there, but plaintiff was compelled, on account of the damaged condition of the peaches to sell them at a greatly reduced price. The jury returned a verdict in his favor for damages in the sum of $655.65, which was the difference between what the peaches would have brought at the market price at Minneapolis if in condition and what the plaintiff got for them when sold there.
Exceptions were saved to the following instruction, given at the instance of the plaintiff, which was a part of instruction No. 1, as follows: “Therefore, in this case, if you believe from the evidence that the defendant company accepted for transportation from the plaintiff at Camden, Arkansas, a carload of peaches for shipment to its destination, or diverted destination, and that the said fruit was damaged by the failure of the defendant company, or some succeeding or connecting carrier, to properly ice the car in which the peaches were transported, then you will find for the plaintiff.” It is insisted, also, that in .another sentence of the instruction there was an erroneous statement making the carrier liable for all damages, even though such damage might Ibe due to the inherent nature of the property. If the language was erroneous, it was certainly not prejudicial in this case, for the undisputed evidence is, as before stated, that the peaches were in good condition for shipment when loaded in the car, and that there could have been no damage from the inherent nature of the property. It is contended that the instruction above quoted is erroneous because it placed an absolute obligation on the company to ice the car instead of merely holding it to reasonable care to furnish an iced car. This contention overlooks the undisputed fact that there was a contract on the part •of the company to furnish .an iced car on the date specified.
In the case of Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 415, we held that “the difference between the obligation to fnrnisb cars imposed by law and that imposed by a contract to furnish them is that the contractual obligation is more onerous; for, while a railroad is not liable for nonperformance of its legal obligations where it has a reasonable excuse to furnish oars as such heavy and unprecedented traffic, it is not relieved from the obligation to perform its contracts by unexpected emergencies in its business.”
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He stated in Ms testimony that he loaded the peaches under protest and it is fairly inferable that he realized that there was little, -if any, prospect of getting the fruit to market in an un-iced oar in condition to sell to advantage ; still, it was Ms duty to make reasonable effort to mitigate the damages and, as .before stated, the evidence warranted the conclusion that the proper thing for him to do was to continue Ms efforts to get the fruit to market. Besides, the sales in Minneapolis amounted to substantially enough to pay the freight, and defendant was not prejudiced by the ineffectual effort to get the fruit, to market and dispose of it. If plaintiff had failed to make the effort he would be confronted with the contention, perhaps, that he had left undone something that he might have done to mitigate the damages.
Defendant also complains that the court refused to give an instruction submitting the question to the jury whether or not the peaches were in a heated condition such as to cause them to ripen prematurely, when they were loaded in the car, but the undisputed evidence is that the peaches were in good condition, and there was nothing to submit to the jury on that score.
The next contention is that the court erred in allowing the plaintiff to prove the diversion of the sMpment from Burlington to St. Paul and Minneapolis. Now, the testimony is that plaintiff’s request for diversion of the ear was promptly granted and that the oar was in a properly iced condition and went on through to St. Paul and thence to Minneapolis without delay. There is, therefore, no question involved in this case of the right to divert the car, because the plaintiff’s request for the diversion was promptly acceded to. He had the right, clearly, to have the car f orwarded from Burlington, even though that was the destination named in the bill of lading. It is true the defendant was only bound to furnish facilities to carry the shipment through to the point ■of destination, but there are no circumstances in' this case which would make that question a material one, as the same facilities would have been furnished for a shipment to Minneapolis as to Burlington; that is to say, a refrigerator car properly iced. Plaintiff was entitled to get his fruit to any -available market, and since the carrier acceded to his request for ,a diversion of the car it is only important to consider that question in connection with the measure of damages.
So, upon the whole, we are of the opinion that the case was properly submitted to the jury, .and that there was enough evidence to sustain the verdict.
Affirmed.