Chicago, Rock Island & Pacific Railway Co. v. George E. Shelton Produce Co.

Kirby, J., (after stating the facts). The undisputed testimony shows that the shipment of bananas was properly loaded and in good condition when it left Mobile on the 13th of June; that it was re-iced afterwards only at Birmingham, Alabama, on the 14th of June. It was received by appellant from the connecting carrier at Hulbert, and left there on its train at 10 o’clock on the evening of the 16th; arrived in Little Rock on the morning of the 17th, and delivered to appellant’s unloading track on the morning of the 18th, notice of delivery having been received by it at 10 o’clock of that day. The bananas were then in a heated and damaged condition because of lack of refrigeration, due to the carrier’s failure to re-ice the car either at Hulbert or upon its arrival in Little Rock, the day before its delivery. A prima facie presumption arises that the last carrier is the negligent one, in the absence of evidence locating the damage to goods in transit over several connecting lines. St. L. I. M. & S. R. Co. v. Coolidge, 73 Ark. 112; H. Rouw Co. v. St. Louis-San Francisco Ry. Co., ante, p. 881. The evidence discloses here however that the court found that the damage resulted from failure to re-ice the car after it came into appellant’s possession, with the knowledge that there was no messenger in charge, and-the shipment was last iced at Birmingham, Alabama. Such failure constituted negligence maldng the carrier liable to the payment of any resulting damages, unless it was relieved of the duty to re-ice the car by the terms of the contract of shipment, the bill of lading. It was known by the connecting carrier transporting the car from Birmingham that it had been re-iced there, according to the directions of messenger, who was not on the train thereafter, and it was not shown whether he left further directions' as to re-icing the car. Neither was it shown that the consignor or the consignee had any notice or information that the messenger was no longer on the train in charge of the shipment; that instructions could be had from them as to re-icing if the necessity therefor arose, in the absence of instructions from the messenger relating thereto. We think that the tariff provides for this contingency, and authorizes the carrier to re-ice the shipment in the. usual and customary way under such condition, and make the proper charge therefor. Certainly the delivering carrier cannot relieve itself from liability to the payment of the damage arising from its failure to re-ice the car under the circumstances of this case. It is equally as liable for damages resulting from its negligence for failure to do so as though no messenger had accompanied the car in the first instance, and especially since none of the carriers, after knowing that the messenger had abandoned the shipment, made any effort to procure instructions from the owner about re-icing it, notwithstanding that, in accordance with their ordinary procedure and the care required of them in transportation of freight, they would have been required to do so. We find- no error in the record, and the judgment is affirmed. Mehaeey, J., disqualified.