Fordyce v. McFlynn

Hemingway, J. i. inability liie^tobk.of That carriers of live stock are liable as common carriers, was decided, by this court in the case of St. Louis, I. M. & S. Ry. v. Lesser, 46 Ark. 236, and is, as we think, sustained by the authorities. Hutch. Carriers, sec. 221, and cases cited. No argument can, therefore, have force that rests upon a contrary assumption. The contract in this case was a contract of carriage and not of hiring, and the liability of the receivers must be determined by the law governing the former relation. Mallory v. Tioga Ry. Co. 39 Barb. 488 ; Gracie v. Palmer, 8 Wheaton, 605. The case of Coup v. Wabash R. Co. 18 A. and E. Ry. Cas. 542, relied upon by appellant as leading to a different conclusion, arose out of a contract materially unlike the one in this case.; and, besides, the court which decided it holds that a carrier of animals is a private and not a public carrier. Mich., etc., Ry. v. McDonough, 21 Mich. 165; Lake Shore R. Co. v. Perkins, 25 id. 329. And as that court takes that side of the question, its decision in a case depending upon it could have little force as an authority in this State, where the opposite view is taken. Under .this view of the law, it follows that the court properly gave the first and third instructions on part of the plaintiff, and properly refused the first and third of the defendants. 2. carrier not respon- ^ ^1,® £“g.f¿LÍp' The only other question presented upon the instrucJ x x x tions is as to the giving of the second on behalf of the plaintiffs. By the terms of the contract, the undertook to furnish and load the cars for the carriage of their animals ; they thereby represented themselves as competent to do the entire work of loading; and if they did it carelessly and thereby caused the injury complained of, the defendants would not be liable, although it appeared that there was a general duty resting upon the conductor to examine trains under his control and see that they were properly loaded. If such duty existed generally, its performance in this case was excused by the plaintiffs. And if the conductor, relying upon their professed competency and the careful performance of their undertaking, refrained from making the examination necessary to detect their incompetency or neglect, the carrier is not liable for injuries occasioned by either. St. Louis, etc. Railway Co. v. Weakly, 50 Ark. 397. Under this view, it is our opinion that the instruction was erroneous, and should not have been given. The appellee insists that, although this instruction be erroneous, it is no ground for reversal, because there could have been no other finding than a verdict for plaintiff. We are unable to say that no other finding could have been reached, and think the case should be submitted to a jury, upon proper instructions, to determine whether the injury was attributable to the negligence of the plaintiffs or of the defendants. For error in giving the second instruction on part of plaintiffs, the judgment will be reversed, and the cause remanded.