St. Louis, Iron Mountain & Southern Ry. Co. v. Caldwell , 89 Ark. 218 ( 1909 )

Hart, J.,

(after stating the facts.) Counsel for appellant first -contends that the -court below erred .in permitting the appellee to testify as to the conversations he had with the railway agent -concerning the shipment prior -to the issuance of the bill of lading. Assuming this to be correct, it was not prejudicial error. Appellee was given a through bill of lading from Newark, Arkansas, to Park, Texas, by appellant. Appellant has a direct line of railroad from Newark to Texarkana. The town of Park was five miles west of Texarkana on the line of the Texas & Pacific Railway Company, and the nearest point to it reached by the St. Louis Southwestern Railway Company was Texarkana. Plence, by the terms .of the bill of lading, the appellant was bound to carry the goods to the terminus of its own line and there deliver them to a connecting carrier, 1 Hutchinson on Carriers, § § 225, 226; Kansas City, Ft. Scott & Memphis R. Co. v. Sharp, 64 Ark. 115; Little Rock, Mississippi River & Texas Ry. Co. v. Glidewell, 39 Ark. 487.

Appellant .company, in transporting the goods having deviated unnecessarily from the route provided by the bill of lading by transferring the goods from its own line at Little Rock to that of the St. Louis Southwestern Railway Company, is liable for the loss, although the contract provides that it shall only be liable for losses occurring on its own line. The reason is that, the carrier being in the wrong, .and it being impossible to determine that the loss would have occurred but for the negligence of the carrier, it must answer for the consequences. 6 Cyc. 383; Little Rock, Miss. River & Texas Ry. Co. v. Glidewell, supra.

Again, counsel for appellant contends that by the terms of the contract it is not liable for breakage or leakage. The. evidence shows that the local tariff rates from Newark to Texarkana were charged, and that no reduction of rates was made on account of this clause of the bill of lading, hence this clause limiting or restricting its liability was not valid, and the present case is controlled in this respect by the decision in the case of St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112, and cases cited; St. Louis & San Francisco Rd. Co. v. Burgin, 83 Ark. 502.

Counsel for appellant also insists that the court erred in permitting the witnesses Mahan and Deener to testify as to their opinion of 'the amount of damage caused by the leakage. Assuming, without deciding the question, that the court erred in admitting this .testimony, .no prejudice resulted to appellant. Appellee testified fully as to the amount of damage sustained. His testimony was not contradicted, was not’ weakened by cross-examination, and was all the testimony on that point except that of Deener and Mahan now complained of.

Judgment affirmed.