(after stating the facts). 1. The first matter submitted is that there should have been a peremptory instruction in favor of the defendant. It was held on the former appeal that the undisputed testimony showed that the railroad company exercised reasonable diligence in furnishing facilities and in transporting the cattle to the destination after delivery to it; and it was pointed out that the law does not require railroads to keep engines and cars at stations at all times to move freight offered for shipment; that this would be an unreasonable requirement; and that the requirement of reasonable care and diligence 'had been met in this case in furnishing the transportation after the cattle were delivered. The case, however, had been tried upon an issue which was not in the pleadings, and to the evidence to sustain it the defendant had objected; and for that reason the judgment was reversed. St. Louis & S. F. Rd. Co. v. Vaughan, 84 Ark. 311. It was held that under the undisputed facts no other cause of action appeared, and this one had been improperly introduced. It must be held that the facts adduced on behalf of the plaintiff were-sufficient to make out a charge of negligence. Mr. Hutchinson says: “He must, at' his peril, inform the shipper of the necessary delay, that the shipper may exercise his own discretion as to the propriety of making the shipment.” 2 Hutchinson on Carriers, § 496. This principle was applied in Kansas & Arkansas Valley Rd. Co. v. Ayres, 63 Ark. 331.
While no negligence can be predicated upon the failure to ■get out the cattle earlier than they were shipped, yet the facts testified to by the plaintiff show that he was assured before seven o’clock in the evening that he could get out his cattle right away, when in fact no regular train was due to leave until 9:3o the next morning, and no special train could be got to him short of eight or nine hours. Upon this he relied, and left his cattle load■ed in the cars, instead of taking them out and caring for them during the delay, as he would otherwise have done. The undisputed testimony is that cattle kept loaded in cars standing still will be materially injured by such delajc Especially would this be true on a cold and rainy night in midwinter. There was sufficient evidence to have sent this question to the jury.
II. It is insisted that the third instruction given by the court of its own motiop is erroneous, in that it assumes certain facts to constitute negligence, when the jury alone, under proper instructions, should determine that. But the instruction, read in the light of the plaintiff’s testimony and the undisputed evidence as to the effect of such delay and the long delay necessary to get them out at the time that the assurances were given of getting them out right away, prevent this criticism of the instruction from being well founded in this instance. If it be error to assume that these facts were negligence per se, that error has been concurred in by the appellant, for the fourth instruction, given at its instance, in another way and in better form, submits the same facts to the jury as a predicate for recovery by the plaintiff if the jury believed such facts to be true.
III. It is urged that the representations of the agent were not the proximate cause of the damage; and it is argued that the evidence shows that the Kansas City Southern yards would not have held more than three cars of- cattle, and that the damage could not have been averted had Vaughan known that the cattle would not be carried out right away. But he testified to facts, which, if believed, showed that he would have cared for his cattle, either in these yards or elsewhere, in a way that would have prevented the injury which they received; and this testimony presented a question for the jury to determine, and was properly submitted upon instructions given at the instance of the appellant.
IV. The provision of the contract to the effect that notice in writing must be given of the damages is also invoked; but there was evidence tending to prove a waiver of this clause, and that question was sent to the jury under proper instructions, framed in conformity to the decision in St. Louis, I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401.
V. It is insisted that the verdict is excessive. The jury gave $734, which the court required the plaintiff to remit down to $600. The limitation of $16 per head, stipulated in the contract, is not exceeded by this verdict. According to the plaintiff’s testimony, twenty of the cattle were dead, and the balance seriously injured and depreciated in value. The difference in value he put at $872. The jury gave less than the testimony warranted, and the circuit court reduced that amount, for what reason is not shown. The court is unable to see wherein the verdict is excessive. It may be that the testimony was not accurate or truthful; but that was a matter to have been argued before the jury, and not elsewhere.
Opinion delivered December 7, 1908.Finding no error in .the case, the judgment is affirmed.