St. Louis, Iron Mountain & Southern Railway Co. v. Marshall , 74 Ark. 597 ( 1905 )

Hut, C. J.,

(after stating the facts.) The uncontroverted evidence is that the defective and unsuitable car was the cause of the injury to the potatoes. The appellant contends that there is no evidence of injury upon its line from La Grange to St. Louis, and that its obligation ceased when the goods were delivered to the connecting carrier, and that, in the absence of evidence, the presumption is that the last carrier is the responsible carrier. In answer to a similar contention in St. Louis, Iron Mountain & Southern Railway Co. v. Coolidge, 73 Ark. 112, the court said: “If the evidence is.sufficient to show negligence in the appellant as the initial carrier which caused the injury, then the presumption is overcome.”

‘The carrier must furnish suitable and proper cars for the purposes of the shipment. 4 Elliott on Railroads, § 1475- -K the carrier fails to furnish proper cars, and damage results from the defect in the car, then the carrier who furnished the defective car is liable, although the actual injury may have occurred beyond its line. Indianapolis, etc. Ry. v. Strain. 81 Ill. 504; Ala. & Vicksburg Ry. v. Searles, 71 Miss. 744; Searles v. Ala. & Vicksburg Ry. 69 Miss. 186; 4 Elliott, Railroads, § 1448, and notes.

This is true, although the shipper may have inspected the car before its acceptance, and was aware of its condition. The Supreme Court of the United States thus stated this proposition: “It is said that Pratt was aware of the defective condition of the car; that he .voluntarily made use of it; and that the risk of loss by its use thus become 'his, and ceased to be that of the company. The judge charged the jury that it was the duty of the carrier to furnish suitable vehicles of transportation; that if he furnished unfit or unsafe vehicles, he is not exempted from responsibility by the fact that the shipper knew them to be defective and used them; and that nothing less than a direct agreement by' the shipper to assume the risk would have that effect. * * * The authorities sustain the position taken by the judge at the trial. *■ * * The judge at the trial in this case might have gone much further than he did, and charged that, if the jury found the company to have been negligent and careless in furnishing cars, they would not be relieved from, responsibility, although there had been an agreement that they should not be liable therefor.” Railroad Co. v. Pratt, 22 Wall. 123. This doctrine was approved in St. Louis, I. M. & S. Ry. Co. v. Lesser, 46 Ark. 236, and other authorities there cited.

The clause in the contract fixing the market at the point of shipment, instead of the point of delivery, as the measure of damage was passed upon in St. Louis, I. M. & S. Ry. Co. v. Coolidge, supra, where it was held that the clause was void unless there was a consideration for it.

The judgment is affirmed.

McCueeoch, J., being disqualified, did not participate.