Howze v. New Orleans & Northeastern Railroad

Mates, J., delivered the opinion of the court. If there is any merit in the contention that the railroad may make a valid stipulation in the contract of affreightment that no suit shall be maintained for damage, unless brought within six months after the cause of action accrues, the delay in handling this claim has operated as a waiver. We have upheld reasonable regulations of this nature, but different, in that it has been applied only to the time in which suit could be maintained after notification of damage. This case in its facts is unlike any' of the cases cited by appellee. In the case of I. C. R. Co. v. Davis & Levy (Miss.), 43 South., 674, the only fact on which it was attempted to hold the railroad liable was simply that the mule was found dead in the car. There was no unnecessary delay, and nothing to show what caused the death; and the court held that under these circumstances the company was not liable. In the case of Y. & M. V. R. R. Co. v. Cox (Miss.), 40 South., 547, the mules were allowed to stand in the ear overnight, instead of being turned into the pen. Some of the mules were injured, and one of them badly skinned and bruised. There was a broken place in the car, but nothing to indicate how the injury oc [701] curred, and no testimony showing that the car was in a bad condition; and the court held that the company was not liable. In the cases of Railroad Co. v. Teams, 75 Miss., 147; 21 South., 706, and L., N. O. & T. Ry. Co. v. Bigger, 66 Miss., 319; 6 South., 234, the facts readily distinguish them from the case now before the court. In this case there is proof tending to show, at least, that the car in which these mules were shipped was in a bad átate of repair, and that it was because of this that the mule was injured. Several slats were broken, and it was testified to that the car was in a dilapidated condition. We think it was a question for the jury whether or not this injury occurred by reason of the negligence of the railroad company in failing to provide a suitable car for the transportation of the mules. A peremptory instruction for defendant was improper. Reversed and remanded: