Missouri Pacific Railroad Co. v. Wellborn Walls

Hart, J., (after stating the facts). Counsel for the defendant contend for a reversal of the judgment on the ground that, under the Interstate Commerce Act, it could not contract for a service not provided for in the tariff schedule filed by it or its connecting carriers with the Interstate Commerce Commission, and that such a contract, if made by it with the shipper, is unenforceable. They point to the fact that the Supreme Court of the United States has decided that the legal rights of the shipper as against the carrier are measured by the published tariff filed with the Interstate Commerce Commission, and that the rights as defined by the tariff can not be varied or enlarged by either the contract or tort of the carrier. Keogh v. Chicago & N. W. Ry. Co., 260 U. S. 156, and cases cited; N. Y., N. H. & Hartford Rd. Co. v. Interstate Commerce Commission, 200 U. S. 361; and Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. Therefore, they contend that because, under the published tariff of the Pennsylvania Railroad Company, which was the terminal carrier, the lumber could not be delivered to the consignee at the point designated in the bill of lading, the Pennsylvania Railroad Company had the right to unload the lumber at the point where it did unload it, upon the refusal of the consignee to receive it at the station on the railroad nearest to its place of business, which was named as the place of delivery in the 'bill of lading. Counsel might be right, if this was all there was in the case; but counsel have not taken into consideration the peculiar facts of this case, which we regard as controlling. Under the decisions of the Supreme Court of the United States above cited and under our own decisions, the initial carrier in interstate shipments is liable for the negligence of any connecting carrier, including the terminal carrier. G. R. I. & P. Ry. Co. v. Dawson, 157 Ark. 460, and Mo. Pac. Rd. Co. v. Americcm Fruit Growers, Inc., 163 Ark. 318. This court has also held that proof of damage to the shipper raises the presumption of negligence, and the (burden rests on the carrier to overcome that presumption. St. L. I. M. & S. Ry. Co. v. Cunningham Commission Co., 125 Ark. 577; and C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 109. The undisputed evidence, shows that the lumber in question was about two feet long, and was specially prepared to be used for a particular purpose by the consignee. The agent of the railroad company was notified of that fact 'before the lumber was loaded in the car. It could have been packed in boxes and crates and shipped in that way if the railroad had so directed. It was carefully packed in each end of a car, and was billed as a car of lumber in order to prevent other freight from being placed in the car. The lumber was walled up in each end of the ear, so that it would not become displaced in shipment. It arrived at its destination in good condition. It appears from the record that it was unloaded on the pier in such a way that it became valueless. Under the circumstances .just detailed, this constituted negligence on the part of the terminal carrier for which the initial carrier was responsible. The evidence for the plaintiffs is uncontradicted, and shows that the lumber had become valueless after it was unloaded on the pier by the Pennsylvania Eailroad Company. It was in good condition before it was unloaded, and the railroad company made no effort to show that there was no negligence in unloading the lumber. Then, assuming that it had a right to deliver the lumber at the pier where it was unloaded, still it had no right to do so in a negligent manner. The undisputed evidence shows that it was worthless after being-unloaded, and the circumstances detailing the care with which it was packed, considered in connection with the special use for which it was designed, show negligence on the part of the railroad company in unloading it so that it became valueless. It is a case where there was no effort on the part of the shipper to secure a preferential rate or advantage which was not given to all other shippers. For some reason, as shown by the undisputed evidence, the lumber was rendered valueless by being-unloaded at the place and in the manner shown in the record. Hence there was no question of fact to be submitted to the'jury, and the court did not err in instructing a verdict for the plaintiffs. It follows that the judgment must be affirmed.