St. Louis Southwestern Railway Co. v. Wallace , 90 Ark. 138 ( 1909 )

Frauenthal, J.,

(after stating- the facts.) The liability of the defendant in this case is determined by the contract of carriage which it made with the plaintiffs and the arrangement which it had for using and running its own trains over that portion of the route on which the delay occurred that caused the damage. By the common law, and independently of any statutory provision or regulation, a common carrier is not bound to assume responsibility for the tranportation of property safely and without unnecessary delay beyond the terminus of its own road and after the property has been turned over to a connecting carrier. But, independently of any statutory liability, a carrier may accept and contract to transport and deliver property beyond the terminus of its own line, so that the liability which it assumes at the beginning of the carriage will continue throughout the transit to the point of delivery and thereby render itself liable for any loss, injury or delay on the line of another carrier over which a part of the transportation is carried. And when such' contract is made the subsidiary carrier becomes the agent of the contracting carrier, and the employees and agents of such owner of the connecting line become his servants and employees, for whose negligence and default he becomes liable to the owner of the property. The carrier can thus bind himself to carry to any destination; and, if it is necessary in order to make the carriage that the goods be transported over the line of another, he assumes the responsibility of the employment of all subsidiary carriers and agents, and is liable for their defaults. 1 Hutchinson on Carriers (3d Ed.) § 226; 6 Cyc. 481; Chicago, etc., Ry. Co. v. Woodward, 164 Ind. 360; Kansas City, Fort Scott & Memphis Rd. Co. v. Washington, 74 Ark. 9; Little Rock & Hot Springs Western Rd. Co. v. Record, 74 Ark. 125.

In this case the defendant admits in its answer that it accepted the property and agreed to transport same from Paragould, Arkansas, to East St. Louis, Illinois, and there deliver the same. It thereby entered into a contract whereby it bound itself to carry the goods over the entire route, and it did not concern the plaintiffs as to what agencies or lines it employed to effect the carriage. In making the transportation to the destination, it secured running power for its own trains over the line of another railroad company for a portion of the route. That did not absolve it from liability, although the damage occurred on the portion of the line which was owned and managed by the other railroad company. It employed the agency of such other road, and is liable for its defaults, whether it had any direct control over 'it or not. As is said in 1 Hutchinson on Carriers (3d Ed.), § 240: “If the contract clearly provides for through carriage, or the facts and circumstances disclose an undertaking to transport the goods to their ultimate destination, all subsidiary carriers employed in the transportation will become the agents of the contracting carrier to effect the performance of the contract, and he can no more stipulate for exemption from liability for the negligent acts or omissions of such agent than he can stipulate for exemption from liability for his own.” Murray v. Lehigh Valley Railroad Co., 32 L. R. A. 539; Chicago, R. I. & P. Ry. Co. v. Martin, 59 Kan. 437; 2 Hutchinson on Carriers (3d Ed.) § 915; Eureka Springs Ry. Co. v. Timmons, 51 Ark. 459.

It is contended by defendant that by the contract it was not liable for loss or damage arising from derailment or other accident or causes not arising from its own negligence. The defendant could not contract for exemption from liability growing out of its own negligence or the negligence of its servants, even though not inhibited from making such exemption by any statutory provision or regulation. Railroad Co. v. Lockwood, 17 Wall. 357; 1 Hutchinson on Carriers (3d Ed.) § 450; 6 Cyc. 387; Taylor v. Little Rock, M. R. & T. Rd. Co., 39 Ark. 148;. Little Rock, M. R. & T. Ry. Co. v. Talbot, 39 Ark. 523; St. Louis, I. M. & S. Ry. Co. v. Lesser, 46 Ark. 236.

When the defendant runs its trains over a portion of the road of another company pursuant to an agreement that its trains while on such road should be under- the control and direction of the servants of the lessor company, it constituted the employees of such company its own agents and servants over such portion of the road, and became liable for their negligence by which the property carried by the defendant became damaged.

In the above case of Murray v. Lehigh Valley Railroad Co., 32 L. R. A. 539, it was held that if one railroad company runs its trains over a portion of the road of another company pursuant to a contract providing that its trains while on such portion of the line should be under the control and direction of the servants of the lessor company, such servants become the agents of the lessee company, and it will be liable for any injury to a passenger carried by it, caused on said portion of the route by the negligent act of such servants, as though they were its own employees. And this applies equally to the carriage of goods.

Now, the derailment of the train and the wreck, by which the transportation of this property was so delayed that it caused the damage, made out a prima facie case of negligence against the defendant, which has not been overcome. Railway Company v. Mitchell, 57 Ark. 418; St. Louis, I. M. & S. Ry. Co. v. Sandidge, 85 Ark. 589. It follows, therefore, that the lower court was not in error in refusing the instruction asked by the defendant, and that its finding herein is sustained by the evidence, and its judgment by the law. The rights of the plainitffs in this case are determined by the common-law liability of the defendant under the contract which it entered into herein for a through transportation and carriage of the property to the point of destination; and they are not dependent upon the provisions of the act of Congress, commonly known as the “Hepburn Act,” approved June 29, 1906, amendatory of the Interstate Commerce Act, approved February 4, 1887; and it is not necessary, therefore, in this case to pass upon the provisions of that act.

It is urged by the defendant that the State court has not jurisdiction over this cause of action because the shipment was an interstate shipment. We do not think that there is any merit in this contention. We presume that it bases this contention on the provisions of the act of Congress entitled, “An Act to regulate Commerce,” approved February 4, 1887, as amended by what is commonly known as the “Hepburn Act,” approved June 29, 1906. But, as before stated, the cause of action in this case is not necessarily founded upon the rights created or given by that act. The question of the liability of the initial carrier for the negligence of the connecting carrier is not involved ir this case; and it is not necessary, therefore, in this .case to pass upon the question as to whether the State courts have jurisdiction to enforce such rights.

The judgment is therefore affirmed .