Southern Express Co. v. Hill , 81 Ark. 1 ( 1906 )

Wood, J.

(after stating the facts.) First. One who is injured by the mere negligence of another can not recover at law or in equity any compensation for his injury if he by his own or his agent’s ordinary negligence or willful wrong contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him. Little Rock & F. S. Ry. Co. v. Pankhurst, 36 Ark. 371; Little Rock & F. S. Ry. Co. v. Cavenesse, 48 Ark. 106; Kansas City So. Ry. Co. v. McGinty, 76 Ark. 356. This doctrine of contributory negligence, so often announced by this court, was correctly applied to the facts of this record in instruction numbered four given on motion of appellant. The court, having given this, did not err in refusing appellant’s request numbered six, which embodied substantially the same idea. The court however erred in giving. instruction number one. This instruction fixed a liability upon appellant if appellee delivered the box to his agent and gave him proper directions for its shipment, and if the agent delivered the box to the appellant and appellant failed or neglected to deliver same to appellee. The instruction in this form wholly ignores the evidence tending to prove that the box was marked by appelllee’s agent "Nashville, Tenn.” Eor, although appellee delivered the box to his agent, Johnson, and directed him how to ship same, it appears from the testimony of Johnson himself (read in the motion for continuance and accepted as evidence in the case) that he failed to carry out stich instructions. Appellee left the box in controversy with him "to be sent to the plaintiff (appellee) at Nashville, Ark.,” and to be marked or addressed accordingly, but the box “was addressed Nashville, Tenn., instead.” The conclusive inference froim this testimony is that Johnson addressed the box “Nashville, Tenn.”, when he should have addressed or marked it “Nashville, A!rk.” But the instruction overlooks this evidence, and makes appellant liable if appellee directed his agent properly how to ship the box, athough the’agent may have failed to carry out his instructions.

The third instruction given at the instance of appellee was also erroneous. It placed the burden of proof upon the appellant to show that the box of goods was addressed to “J. W. Hill, Nashville, Tenn.,” provided appellant issued its bill of lading to appellee or his agent showing that the box was addressed to “J. W. Hill, Nashville, Ark:” Appellant on cross-examination objected to the introduction of the receipt as soon as it ascertained that the receipt had not been properly authenticated. The court should then have sustained the objection and excluded the receipt as evidence unless appellee would then or thereafter properly prove its execution. Taking the receipt out of the case as the court should have done, the Instruction numbered three for appellee was abstract, there being no evidence upon which to ground it. But, even if it were conceded that the receipt was properly authenticated, and therefore properly in evidence, the instruction would still be erroneous. For the probative effect of the receipt was simply to show that appellant had received a box of goods marked Nashville, Ark. The receipt tended to contradict appellant’s witness, Johnson, who testified that the box was marked “Nashville, Tenn.” The receipt was not conclusive evidence of how the box was marked. While a receipt is usual, it is not essential to the duty or contract of carriage. Southern Express Co. v. Kaufman, 12 Heisk. (Tenn.) 161. It was one of the evidentary facts tending to show that the box was marked in a certain way, while other evidence tended to show that it was marked in a different way.

In such a case, the evidence being all before the jury and conflicting, there was no shifting of the burden of proof. The burden was on the appellee to make out his case by a preponderance of the evidence.

Second. Appellant contends that, if liable at all, it is not liable for more than fifty dollars, under the following provision in the receipt: “If the value of the property is not stated by the shipper at the time of the shipment, and specified in the receipt, the holder thereof will not demand of the company a sum exceeding fifty dollars for the loss or damage to the shipment receipted for.” According to the terms of the receipt this provision is applicable in the event the shipment is lost or damaged. Appellee contends with much plausibility that the box in this case was neither lost nor damaged, but was converted by appellant, and that therefore the above provision limiting its liability is not applicable. We need not pass upon that question.. For, conceding that the receipt was in the case, the appellant can not claim the benefit of it, because it is not based upon any consideration. St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112.

For the errors indicated the judgment is reversed, and cause remanded for new trial.