#### Eoff v. Scullin et al., Receivers.

Opinion delivered October 25, 1915.

1. Carriers — damage to freight — evidence of negligence. — In an action foir damages to freight, under the evidence, field, it was a question for the jury whether the carrier’s negligence w-as the cause of the damage.

2. Carriers — injury to freight — notice within . certain time. — A. shipped a jack over defendant railway company’s line, the contract *453of shipment providing that notice of injury or damage to the jack should he given the -carrier within one day after it was delivered -at destination. The jack was delivered on 'Saturday. The evidence showed it to have been negligently handled on the journey, but it showed no indication of injury until the succeeding Thursday. Held, the pro-vision of the contract as to the time of notice to the carrier would not be enforced, as it was unreasonable under the facts, and since it was impossible for the shipper to know of the damage within the time provided by the contract.

Ap-peal -from Boone 'Circuit 'Court; John I. Worthington, Judge;

reversed.

STATEMENT BY THE COURT.

The appellants filed their complaint against the Missouri Pacific Railway 'Company tand the appellees herein, as receivers of the Missouri & North Arkansas Railroad Company, setting up that they had -shipped a jack over the lines -of the Missouri Pacific Railway Company from Smithton, Missouri, to Joplin, 'and from Joplin over the Missouri & North Arkansas Railroad to Beliefonte, Arkansas. They charge negligence in delaying the shipment and in moving the cars, by which numerous unnecessary jolts iand jars occurred, thereby injuring the jack o.f appellants, to their damage in the sum of $3,500.00, for which they prayed judgment.

The service on the Missouri Pacific Railway Company was quashed and the suit proceeded against the receivers of the Missouri & North Arkansas Railroad Company. They deny that there was any negligent delay or any negligent handling of the jack on the Missouri & North Arkansas Railroad. The testimony of the plaintiff Eoff on this point is as follows:

Q. I will ask you to ¡state, Flem, what the handling was so far -a-s the train was concerned with reference to the jars, -and jerks and jolts or its smooth operation after you left Joplin to come to Bellefonte. A. Well, we -did pretty well until we got to Seligman -and then from there to Eureka and up there at the tunnel. Q. Were there any ■ jars and jerks of unusual force and character. A. Yes, sir. Q. What happened-at the tunnel? A. Well, *454they stuck in there. I don’t know, jerked around there trying to get out of there 'and stayed right there quite a little hit. Q. Anything happen to the train and engine in the tunnel? A. There was something, I don’t know, they jerked something out, I 'believe .they called it a drawbar. Q. There was a jerk there? A. Yes, they cut >out some ears there. Q. Cut out some cars? A. Yes. Q. The jolts and jerks were 'unusually heavy? A. Yes, sir. Q. Just state what was done? A. They jerked there a right smart .and then come on a little piece further, over to Freeman, I believe they said it was, and they claimed the 18 hours was up. Q. Now, just go on and tell us what was done? A. Well, they stopped there —just stopped there and went to bed when we got there. Q. That is, the hands went to bed? A. The crew went to bed and just left ns standing there on the sidetrack. Q. How long did you stay there? A. I don’t know, not very long they sent after 'another outfit and they carried us a little piece further. Q Then on the way to Beliefonte what about the jerks iand jars .and rough handling of it? A. They handled us pretty rough from there on.

On cross-examination the witness, in answer to questions, stated that it was not as rough on the Missouri & North Arkansas .as on the Missouri Pacific. He stated that he told the conductor that it was handled pretty rough, but that the other road (the Missouri Pacific), of course, handled it a “heap rougher” than this road (meaning appellees ’ road).

Appellees further set up that the plaintiffs violated the terms of the contract under which the jack was shipped by failing to give the written notice therein required. The contract specified: “as a condition precedent to the recovery of damages for injury to livestock, the shipper shall give notice in writing of his claim to some general officer of the company, or of the nearest station ■ agent, or the agent at destination, and before the livestock is mingled with either livestock, and within one day after it is delivered at destination.”

*455The plaintiffs admitted that they did not give the notice specified in the contract, and set up as justification for not so doing that “they did not know and it was impossible for them to know the true condition of the jack within the time that they were required to 'give the notice.”

After the testimony was adduced, the court, at the request of the defendants, instructed the jury to return a verdict in their favor. The plaintiffs duly objected and excepted to the rulings of the court, and from a judgment dismissing plaintiffs ’ complaint, iand in favor of the defendants for costs, this appeal has been 'duly prosecuted.

E. G. Mitchell, for appellants.

1. It was error to direct a verdict. Notice was given, as isoon as possible, of the injury. 94 Ark. 407; 105 Id. 406; 90 Id. 306; 101 Id. 436; 111 Id. 102. Unreasonable stipulations are void. Railroads are insurers of property in transit. 100 Ark. 279, 281.

2. This was an interstate shipment. 94 Ark. 106. Appellees had no opportunity to .ship under any other than a contract of limited liability. "81 Ark. 469. The Contract was impossible of performance. 107 Ark. 48; 105 Id. 411; 90 Id. 308, 413.

3. The cause should have been submitted to a jury under proper instructions. 226 U. S. 491.

W. B. Smith, J. Merrick Moore, and II. M. Trieber, for appellees.

1. No written notice was given as provided. The stipulation for notice was reasonable. 14 'Conn. 362; 39 Pae. 688. But if not reasonable notice within a reasonable time thereafter was required. 112 Pae. 1026; 8 So. 619. But no notice was given at all.

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 *456of 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 *457in 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. *458 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.