St. Louis, Iron Mountain & Southern Railway Co. v. Hudgins Produce Co.

Kirby, J., (after stating the facts). The appellant contends that there was no negligence shown for which it was responsible, causing damage to the shipment of potatoes, and that the court erred in not instructing a verdict in its favor. (1) It is not disputed that the potatoes were in a damaged condition when they arrived at the point of destination on appellant’s line. Appellant made no effort to show where or how the damage actually occurred, and the law presumes in the .absence of other proof that the delivering carrier was the negligent one. Midland Valley Rd. Co. v. Hale, 86 Ark. 484; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112. (2) A common carrier is practically .an insurer of all goods received by it for shipment against .all losses except those relating to, or which arise from, the act of God, of the public enemy, of constituted authority, of the shipper, or from the inherent nature of the goods shipped, and in ¡all cases in which loss occurs, not falling within said recognized exceptions, the carrier is responsible notwithstanding there may be no negligence or fault upon its part. Its liability springs from the duty imposed upon it to carry safely and the law making it responsible as an insurer for the losses occurring from any and every cause, ■other than one f alling within the specified exceptions. St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Brennisen v. Pa. Rd. Co., 100 Minn. 102. Appellant contends that the damage to the freight' shipped, which was of a perishable nature .and froze while in transit, was caused by act of God, for which the carrier is not liable, there being shown no unnecessary delay in transportation or carelessness on its part in exposing the shipment to the cold. Some of the .authorities hold “where the immediate and sole cause of loss is the action of the elements, as by freezing, the carrier is relieved from liability. 4 Ell. Railroads, § 1455; 1 Moore on Carriers, p. 314; Schwartz v. Erie Rd. Co., 106 S. W. (Ky.) 1188. (3) Of course, if the negligence of the carrier concurs with the act of Grod in producing the injury, it is still required to answer therefor. Vail v. Pacific R. R. Co., 63 Mo. 230; 6 Cyc. 381; White v. Minneapolis & R. R. Ry. Co., 111 Minn. 167. In.the last cited case the court said: “A carrier is not an insurer against damages to freight from changes in temperature, unless the ¡circumstances in which the transportation is undertaken impose upon the carrier that obligation; but if, after .acceptance of the freight, its transportation is delayed, the ¡carrier must use reasonable care to protect it during the ¡delay. ’ ’ There was no unnecessary delay in the delivery of this carload of potatoes shown from the testimony, nor ■any evidence tending to show negligence upon the part of appellant company, the delivering line, but the shipment arrived at destination in its possession in' a damaged condition, and there is a presumption'of law that the carrier is responsible therefor; that the delivering carrier is the negligent one. It made no effort tó show when, where or how the injury occurred, nor whether before or after the shipment wias received from the connecting carrier on its line, and although the testimony of the appellee tends strongly to show that damage was occasioned by the failure to load the potatoes properly by putting straw in the car to prevent ¡those lying next to the floor from- freezing, or by putting’ paper .on the floor with a stove inside to keep the temperature above freezing, it was not shown whose duty it was to attend to the proper loading thereof, and generally the loading and unloading of goods are under the carrier’s control, and it is responsible for any loss or injury incident thereto. 6 Cyc. 381. (4) Of course, if the shipper assumed the responsibility of loading and unloading, it would relieve the carrier from liability for loss in that connection. We do not think the testimony in this case sufficient to overcome the presumption that the damage occurred on the appellant’s line, .and it is sufficient to support the verdict. Affirmed.