Chicago, Rock Island & Pacific Railway Co. v. Miles , 92 Ark. 573 ( 1909 )

Wood, J.

(after stating the facts). 1. It is wholly immaterial, under the evidence in this case, whether the -cattle were shipped under an -oral or written contract. Eor in either case appellant would be liable for any damages to appellee caused through its negligence- or the negligence of .connecting carriers. If appellant or connecting carriers failed to exercise -ordinary care in the transportation of the cattle, resulting in delays by reason of which the cattle failed to reach their destination in -a reasonable time after they were delivered to appellant for shipment, then appellant -would be liable to appellee in damages for whatsoever injury the latter sustained as the1 direct and proximate result of such negligence. St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154.

2. The court did not err in admitting the evidence of appellee as to the amount of his damages by reason of the failure of appellant to deliver the cattle at Brady on the 18th day of April, 1908.

Appellant had notice of the day of the sale, and of all the circumstances in detail as to why the sale was planned and fixed for that day. The sale was for a special purpose, and was extensively advertised for that day. Appellant, t according to the evidence of appellee, had notice of all this, and made its contract with full knowledge that it was necessary to get the cattle to Brady for the sale on that day if appellee ¡was to secure the benefit of that sale. Appellant had no right to assume that the sale would continue from day to day, or would be as profitable to appellee if made on some other .day. No other day was thought of. That was the particular and only day. Having notice of the special damage that would result to appellee if he failed to get his cattle to that auction sale, and having contracted with appellee after such notice to deliver them for that sale, appellant can not be heard to say that the damages that appellee sustained by reason of the loss of that particular sale were not in contemplation of the parties to the contract. Hadley v. Baxendale, 9 Exch. 341. See Western Union Tel. Co. v. Hogue, 79 Ark. 33; Western Union Tel. Co. v. Raines, 78 Ark. 545.

The damages in such case is the difference in the value of the cattle as measured by what they would have sold for on the market at the auction sale, had the same occurred, and what they would have brought on the market at the same place and on the same day when not sold at auction. The proof is positive that the sale of the cattle that were on hand for the auction did not exhaust the demand for them when sold by that method. And that appellee’s cattle were above the average of those that ¡were sold at auction on that day at $183 per head, and that his cattle, considering their superior quality, would have brought $200 per head at the auction sale. But, when sold on the market at private sale, he could only obtain $100 per head for them. The facts ¡bring the case well within the rule announced by the Supreme Court of Massachusetts and approved by this court in Chicago, R. I. & P. Ry. Co. v. Planters’ Gin & Oil Company, 88 Ark. 87, 88, as follows:

“The damages for which a carrier is liable upon failure ■to perform his contract are those which result from the natural and ordinary consequences contemplated at the time of making the contract of transportation; and a larger liability can be imposed upon him only when it is in the contemplation of the parties that the carrier is to respond, in case of breach, for special and exceptional damages.”

The court gave the jury a correct guide in ascertaining the measure of damages, and the evidence warranted a larger sum than the jury found.

3. In the case of St. Louis S. W. Ry. Co. v. Grayson, supra, we held that under the Hepburn act the initial carrier is liable for damages to an interstate shipment of freight undertaken by it, whether the loss occurred on its own line, or on the lines of connecting carriers. See also recent case of the Kansas City Southern Ry. Co. v. Carl, 91 Ark. 97, where we held that the Hepburn • act “renders invalid all stipulations limiting liability for losses caused by the carrier’s negligence.”

These decisions rule the case at bar on the question of limited liability under the written contract, conceding that the cattle were shipped under such contract, and, in view of the above decisions, the instructions of the court on this issue were more favorable to appellant than it was entitled to, and therefore it cannot complain.

4. The court in effect told the jury that, even if the cattle would have reached Brady in time for the'auction sale but for the act of God, still if they were negligently delayed before reaching the obstruction, and but for such negligent delay would have passed beyond the point of obstruction before the obstruction occurred, the appellant would be liable..

In .the .cases of Martin v. Railway Company, 55 Ark. 510, and James v. James, 58 Ark. 157, there was a destruction of cotton by fire, an unavoidable accident, or, we may say, an act of God, and in those cases we said the failure to ship in the one case, and the failure to gin in the other, were of .a series of events without which the loss would not have happened, but they were not the direct and proximate cause of the loss. But such is not the case here. The direct cause of the loss of ■the market of April 18, 1908, to appellee was the delay, as the evidence tended to show, of appellant. For, but for such delay, the cattle would have reached Brady in time for the sale. True, it may be said that they, having passed the river before the flood came, also would have reached Brady but for the act of God in washing away the bridge. The cattle were not destroyed by the flood, as in the case of the cotton, supra. In cases where there is a destruction of property by fire or flood, it is literally true that these agencies .are the direct cause of the loss. Here the loss to the market was due to the delay of the cattle in reaching their destination in time. The two things that contributed to -that delay were the negligence of the company and the act of God. Both combined in the case to produce the delay in getting the cattle to their destination in time. Both were the direct and proximate cause of the delay which resulted in the loss. The one was not the proximate and the other the remote cause of the loss. But the one concurred with the other in producing the delay in getting the cattle to the market, and this delay, .continued until and after the day of sale, was the ■direct and proximate cause of appellee’s loss and injury. The rule applicable here is announced in 1 Am. & Eng. Enc. of Law, 595, 596, as follows: “Where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative, cause, the carrier is still responsible.” See cases cited in note. See also Elliott on Railroads, § 1488. This is a typical case of concurring or commingling direct and proximate causes. See Hutchinson on Carriers (3d Ed.) § 297 (193), et seq., where the varying views are stated and the authorities to sustain them are cited. See by analogy Marcum v. Three States Lumber Co., 88 Ark. 28-37; Chicago Mill & Lumber Co. v. Cooper, 90 Ark. 326. In Rogers v. Missouri Pac. Ry. Co., 88 Pac. Rep. 885, a carrier delayed the transportation of com an unreasonable length of time, and after the com reached its destination it was destroyed by an unprecedented flood. The Supreme Court of Kansas, in an exhaustive and able review of the authorities by Mr. Justice Burch, held that the carrier was not liable, that the intervening act of God was the direct and proximate cause of the loss. That case and the many cases cited by him to support the doctrine announced are exactly in line with our own decisions of Martin v. Railway Company and James v. James, supra, where there was a total destruction of or injury to the property by the act of God operating upon it, and where the negligent delay was a mere incident, but not the direct cause, of the loss. These cases are correct, for in such cases it cannot be reasonably anticipated, when the contract is entered upon, that a negligent delay would bring the property within the operation of an act of God that would damage or destroy it. Such occurrence could not be reasonably foreseen and guarded against, and therefore there is no liability in such cases, because the loss is produced by-the intervening act of God as the direct and proximate cause. But in cases like this, where the party contracts to deliver property at a certain time, the delay on his part that actually causes the result that the parties had expressly contracted should not take place, as in the case at bar the loss of the market, is certainly a direct and proximate cause of that result, and not a mere incident or remote cause of it. And it matters not that there may be also other concurring or commingling causes that also contributed directly to produce the delay. For it must not be forgotten that the loss of this market was -caused by the delay, and not by the act of God. In all such cases as the Miartin, James and Rogers cases, supra, the loss is caused directly by the act of God, and not by the delay.

Judgment is affirmed.