Eoff v. Scullin ( 1915 )

Wood, J.

(after stating the facts). (1) The appellees insist that the judgment was Correct because there was no evidence to show negligence on the part of the appellees’ road. The question of negligence under the evidence was one for the jury, especially as to whether or not appellees’ employees were negligent in the handling of the ear after the same was received on appellees ’ road. The testimony of the .appellant Eioff, set forth in the statement, made it an issue of fact for the jury to say whether or not the appellees’ employees were negligent in the manner in which they handled the car that contained the appellants’ jack.

(2) It is conceded by the appellants that the notice specified in the contract was not given. The undisputed evidence «on this point was to the effect that the jack was delivered to the appellants at Beliefonte on «Saturday afternoon. When the jack was unloaded at Bellefonte, it appeared to «be “in good health «and in good condition. Looked like he was all right.” Eoff, one of the appellants, discovered on Monday “some symptoms that the jack was not right.” He did not know .at that'time what was wrong with him; didn’t 'know but what he was foundered; “didn’t know what was the matte«r.” He was asked “How long afterwards until it «seriously «began to manifest itself?” and before he began to get uneasy, and answered “Well, I believe it was Thursday.” The testimony of the veterinary .surgeon showed that the jack had what he designated as “car founder — limanitis,’’ “«caused from standing t«o«o long and from being jerked, probably.” The witness stated that unusual jerking or jars would cause it.

The appellees contend that «appellants had notice of the injury to the jack «on Monday, and that excluding «Sundaythe notice could and ishould «have been given on Monday, «and therefore that .app ellantsijhad Reasonable opportunity to comply with the notice requirement of the contract. 'Conceding, without deciding, that «Sunday should be ex«cluded, still the undisputed evidence shows that the appellants did not know on Monday that the injury to the jack was caused 'by the negligence of the employees of the appellees. The proof shows that they «did not 'know until several days thereafter that the jack was injured as a result of «delay «and rough «handling during his «shipment. This court has frequently held that «this provision in contracts of common carriers, where reasonable, will be enforced; but necessarily the parties to a contract containing this provision do not contemplate, in the making of it, compliance with it where such compliance is impossible.

This court speaking of a similar provision in St. Louis & San Francisco Rd. Co. v. Keller, 90 Ark. 308, said: “This provision of the contract does not affect the liability, itself, of the common carrier created or caused by the act itself of injury or of negligence. It is not a limitation of or an exemption from liability done or caused by such act of injury or negligence. * * * It is founded upon the consideration of the original contract, and its validity depends upon its reasonableness. If it is not inhibited by any statutory enactment, and if it is otherwise reasonable, there is no reason of public policy that should declare it invalid. ’ ’ And further, ‘ ‘ Its effect is to require the one who has the peculiar knowledge to inform the other who has not 'that knowledge to seek the facts while they exist, iso that the facts may be obtained and presented by both sides. ’ ’

It is manifest that the purpose of this provision is to have shipper notify carrier promptly and to enable the carrier to investigate promptly when it is notified by the shipper of the injury claimed by him to have been sustained by reason of the negligence in shipment. 'The carrier could not have .contemplated in such a provision that the shipper should give notice within one day when the shipper himself did not know that he had sustained any damage hv the negligence of the carrier. To require notice under such circumstances would be wholly unreasonable and be exacting on the part of the shipper compliance with the provision of a contract under .circumstances that the parties did not have in opind when the contract was executed. This court will not uphold .and enforce the provisions of such' a contract where it appears from the undisputed evidence that it would be unreasonable to do so, as it does in this case. See St. Louis & San Francisco Rd. Co. v. Keller, supra, and cases there cited.

But it is /contended iby the appellees that if the /stipulation for notice within one day is not reasonable that .appellants were required to give notice within .a' reasonable time thereafter. It does not follow that because it is unreasonable under the circumstances to enforce the contract as made iby the parties that the shipper should be held to give the notice within, a reasonable time after discovering the injury. This provision is purely one of contract, and while the court should refuse to enforce a contract of a public carrier made with its shipper that is unreasonable, it .does not follow that the shipper should be compelled to give notice other than that required by the contract. To do this would be .compelling the shipper to perform conditions which neither his contract nor the law requires. The court will not make contracts for the parties.

The court therefore erred in directing la verdict for the appellees, so the judgment is reversed and the cause remanded for a new trial.