Joest v. Clarendon & Rosedale Packet Co.

Hart, J., (after stating the facts). (1) It is first insisted by counsel for the defendant that he was not a common carrier. The evidence, however, .shows that hei was operating an incline for hire at the time the rice was 1 lost and that he undertook to carry the cargoes of all I vessels plying the river up the incline to the cars of the j railroad company. This made him a common carrier. Arkadelphia Milling Co. v. Smoker Merchandise Company, 100 Ark. 44. (2) The shipment in question was an interstate one. The packet company was the initial carrier. The undisputed evidence shows that the rice became worthless when it fell into the river and the initial carrier paid to the shipper the value of the rice. It had a right then toV recover from the connecting carrier the amount of dam- jj age it had been required to pay the shipper by reason of Sj the negligence of the connecting carrier. K. C. & Mfs. Ry. Co. v. N. Y. Central & Hudson River Rd. Co., 110 Ark. 612; Atlantic Coast Line Rd. Co. v. Riverside Mills, 219 U. S. 186. (3) It was the contention of the defendant that he gave his engineer instructions not to load more than fifty sacks of rice on one car at any one time and that in disregard of these instructions the plaintiff placed ninety-six .sacks of rice on one of the incline cars and that the overloading of the car caused the loss. On this phase of the case the court instructed the jury that if the plaintiff placed ninety-six sacks of rice on one of the incline cars of the defendant and that if they further found that this was in violation of the instructions of the defendant, and that the overloading of the car was the cause or one of the causes of the loss of the rice, that they should find for the defendant. So, it will be seen that the 'contention of the defendant was submitted to the jury 'under as favorable instructions as he could ask. Besides, there is no evidence tending to show that the overloading of the car was the cause of the accident. The undisputed evidence shows that at the time of the accident one car was resting against the bumper at the foot of the incline and the other car was at the top of the incline. The accident was caused by the removal of a certain pin and clamp that released the cable and permitted one of the cars to roll down the incline, knocking the bumper loose and thus precipitating the other car into the water. It is the contention of the defendant that it was not his duty to ‘ ‘ spot ’ ’ the cars and that the pin was removed by one of the employees of the packet company for the purpose of “spotting” the car. On the other hand, the testimony on the part of the plaintiff shows that the pin was removed by the engineer for the purpose of drawing the railroad car into position to be loaded from the incline car, and that it was the duty of the defendant to do this and that the removal of the pin was the cause of the accident. This 'phase of the case was submitted to the jury under proper instructions. We have carefully examined the record and find no prejudicial error in it. The judgment will, therefore, be affirmed.