87 Ark. 298 | Ark. | 1908
This is the second appearance of this case here. See St. Louis S. W. Ry. Co. v. Leder, 79 Ark. 59. On the reversal, there was a trial, resulting in a verdict in favor of the plaintiff for $240, and the railroad company has appealed. The substance of the facts will be found in the statement of facts, with such instructions as here commented upon.
It is contended that the second and third instructions, given on behalf of the plaintiff, are in conflict with the third and fourth given on behalf of the defendants. The second and third instructions are correct general statements; and the third and fourth given at the instance of the defendant are also correct statements where applicable to excuse the carrier for a failure to perform its duties. It would have been better form, and would have made the instructions more clear, had the rule constituting the excuse been stated along with the rule stating the general duty resting upon the carrier of furnishing cars. But, as has frequently been said by this court, all of the law of the case cannot be stated in one instruction; and, so long as all of the instructions are correct statements, and, when considered together, present every proper view of the facts, and are not in conflict with each other, there is no error in presenting them separately. What was said in St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61, is applicable here: “Criticisms are made of some of the instructions, in thac they seem to permit a recovery if the jury find the defendant guilty of negligence, without the qualification ‘and unless they find the deceased not guilty of contributory negligence.’ Taking these instructions as a whole, the court think they made it clear to the jury that contributory negligence on the part of deceased would defeat a recovery, even should they find the defendant guilty of negligence. It is generally impossible to state all the law of the case in one instruction; and • if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others;” citing authorities.
The defendant endeavored to have the court instruct'the jury that if the plaintiff could have procured cars in January and February to ship their hay, and the market had not depreciated, or was as good as in December, no recovery other than for nominal damages could be had for the hay which was sold before the market price fell. The court properly refused to give this instruction. This theory would require the shipper to await the turn of the market to find out whether the railroad company had injured him by failing to furnish him cars. If there should be a rise in the market in thé price of the commodity he was-offering, he would be benefited -by the refusal of the railroad company to furnish him cars; if the market price fell, he would be more greatly damaged than had he sold at the price obtaining at the time of the refusal. If he.continued to hold his commodity and the price went down, the railroad company could well have contended, in a suit claiming the difference in price when the goods were offered and that to which it had fallen later, that they were only liable for the price that prevailed at the time they failed to furnish him with cars.
In this case the business necessities of the parties required them to sell the hay at the price prevailing in the locality, instead of getting a better price elsewhere, .which they would have received had they been able to ship to the desired market. That difference was the true measure of damages. 3 Hutchinson on Carriers, § 1366; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112; Crutcher v. Choctaw, O. & G. Rd. Co., 74 Ark. 358; Choctaw, O. & G. Rd. Co. v. Rolfe, 76 Ark. 220.
Defendant asked, an instruction that the plaintiffs could not recover damages for the depreciation in the price of so much of the hay as was on 'their farm, five miles from the station. The facts were that the hay which the plaintiffs desired to ship was stored partly in their warehouse near the station and partly in a barn on their farm five miles distant. Whenever the plaintiffs got a car, they loaded the hay from the warehouse near the station, or hauled it from their barn on the farm. This was the customary and usual method of shipping hay. Ir is undisputed that the plaintiffs had the hay under their control and ready for shipment as soon as cars were furnished therefor; and it cannot be questioned that they in good faith demanded cars to ship this identical hay, which was ready for shipment according to the usual, method of shipping such commodities when the demand for cars was made.
The shipper has a reasonable time, after his car arrives, to load it. This is not a question of delivery to the carrier, but is a question of furnishing cars in order that the shipper may make delivery to the carrier. The mere fact that the commodity was not on the platform is not an excuse for failing to furnish cars when the commodity is under control of the shipper and ready for shipment in the usual way such commodity is shipped. St. Louis, I. M. & S. Ry. Co. v. Ozier, 86 Ark. 179; St. Louis, I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., 81. Ark. 373.
The verdict is assailed as being excessive; and probably some of the items claimed would not be recoverable. But there is sufficient undisputed evidence to sustain the amount of the recovery, and hence these other matters become unimportant.
The judgment is affirmed.
