Kansas City Southern Railway Co. v. Embry

McCulloch, J., (after stating the facts.) 1. Counsel for appellant assign as error the ruling of the court in permitting Mrs. Payne, witness for appellee, to testify as to conversation with the railroad agent at South McAlester. She testified that she had no knowledge of an indorsement made on the bill of lading by agent reducing, in case of loss, the value of the articles down to $5 per hundredweight; denied that she received reduced freight rate on the shipment; and stated that the agent said to her:. “We are responsible for your goods or any damage to your goods.” Counsel also contend that the court erred in its instruction to the effect that the indorsement on the bill of lading reducing the value of the articles down to $5 was not bindingoon appellee if she contracted to pay the highest rate for freight, and had no knowledge of the indorsement. We need not determine whether the evidence was competent, or the instruction in question proper, as there was no prejudice to appellant in either ruling. Appellant did not plead the release, and, as the same was not in issue, no harm resulted in permitting appellee to prove that she did not agree to the release, nor in instructing the jury that she was not bound by the indorsement. Nor is any release sufficiently proved. The bill of lading shows on its face an . indorsement of the abbreviation, “Reí. Val. $3 Cwt.” Nothing appears on the bill of lading nor in the testimony to explain what the terms imply, though counsel argue that they imply an agreement to reduce the value of the property, in case of loss or damage, down to $5 per hundredweight. The court cannot assume that they mean any such thing. The bill of lading contains a clause providing that, “in case of loss or damage sustained by any property herein receipted for, whereby any liability or responsibility may be incurred, the amount of loss or damage shall he computed at the value or cost of the articles herein mentioned at the place and time of shipment.” In the face of this provision no ambiguous stipulation limiting liability can be allowed to prevail against it. 2. It has been several times held by this court, and the rule is undoubtedly supported by substantially all the authorities, that, “in the absence of evidence locating the damage to goods in transit over several connecting lines, a prima facie presumption arises that the last carrier is the negligent one.” St. Louis S. W. Ry. Co. v. Birdwell, 72 Ark. 502; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112, 83 S. W. 333. In this case there is evidence that the damage occurred while the property was at a station maintained jointly by both carriers, and the presumption still arises, until the contrary is shown by evidence, that the damage occurred after the delivery to appellant as the last carrier. Appellant seeks to overcome this presumption by proving a prevailing custom that, notwithstanding the fact that the freight is discharged at a station in charge of a joint agent of the two companies, and is then negligently exposed to injury, it is not considered as delivered to the last carrier until a record showing a delivery to the last carrier is made by the joint agent upon the books. We cannot approve any such doctrine. The two carriers were both liable for the negligence of their common ’ agent; and, as against the person whose property was damaged thereby, the responsibility cannot be shifted by showing that the common agent had not performed some act, such as executing receipt or the like, necessary to constitute a delivery as between the two principals. ■ The rule is correctly announced in Hutchinson on Carriers, § 169, that “where they (connecting carriers) jointly employ a common agent in the prosecution of a joint enterprise as carriers, they become jointly liable for his defaults.” See also 1 Elliott, Railroads, § 1447. The undisputed testimony in this case shows that the piano and machine arrived at Howe Junction during the night, and were allowed to remain on the open platform exposed to the rain until nine or ten o’clock the succeeeding morning. Plaintiff’s witness testified that she saw it there about ten o’clock on the platform in the rain, and called the attention of the station agent to it. The agent testified that his attention was called to the exposed condition of the piano by Mrs. Payne as late as 9 o’clock next morning, and that it had been rained on. He is not certain whether it was then raining. This makes out a clear case of negligence, for which the appellant is liable. Affirmed.