Yazoo & M. V. R. R. v. Bell

71 So. 272 | Miss. | 1916

Smith, C. J.,

delivered thé opinion of the court.

' (After stating the facts as above). Numerous reasons are assigned for reversing the judgment of the court below, but the only one we deem it necessary to specifically notice is:- That no liability on the part of appellant has been shown, first, because the evidence does not disclose that the cattle were injured by reason of the negligence of appellant or of the Illinois Central Railroad Company; and, second, because the provision in the bill of lading requiring written notice of appellee’s claim for damages, verified by affidavit to be delivered to certain of appellant’s agents within ten days from the time the stock were removed from the car, was not complied with.

It appearing from the evidence that the cattle were in good condition when delivered to appellant for shipment,, and that when the car in which they were loaded arrived in New Orleans, some of them were missing, one was dead, and others were injured, it devolved upon appellant to acquit itself of liability by showing that this did not occur by reason of its negligence. Railroad Co. v. Abels, 60 Miss. 1017; Railroad Co. v. Bigger, 66 Miss. 319, 6 So. 234. This appellant failed to do for the reason that the evidence is wholly silent as to the handling of the car while it was in Jackson, Miss.

The provision in the bill of lading requiring notice in writing to be given appellant of appellee’s claim within ten days after arrival of the cattle in New Orleans cannot be availed of here under the rule announced in the case of Railroad Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, for the reason that it does not appear from the evidence that this special feature of the contract was supported by a consideration. It is contended by counsel for appellant that the consideration for this provision of the contract was a lower freight rate obtained by appellee because of the acceptance by him of this bill of lading. This is true in so far as the stipulations therein relative to the value of the cattle are concerned, but it is not true with reference to the clause of 'the bill of lading here in question. All that appears in the evidence with reference to the freight rate is the provision in the bill of lading indicating that a higher rate would be charged in event the declared valuation of the cattle should be greater than that printed therein. In any event, for aught that appears from the evidence, the bill of lading would have contained the stipulation here in question.

Affirmed.