(after stating the facts). There was a clause in the bill of lading which required the plaintiff to give written notice oif any claim for damages for injury to his stock while in transit -and it is the contention of the railway company that 'the judgment must be reversed because the plaintiff failed to give the written notice of his intention to claim damages for the alleged injury to his stock.
(1) This court has held that the provision of the contract requiring that the .shipper give written notice of the place and nature of the injuries to the nearest station or other agent of the carrier may be waived by the railway company. The reason 'given therefor is that the object of requiring notice of the place and naJture of the injuries is to give the carrier .an .opportunity for a full and fair investigation of isuch injuries when and where it will be ¡most certain, easy and expeditious. The notice is required to be in writing so that the nature of the shipper’s grievance may be definitely .and clearly stated. St. L. I. M. & S. Ry. v. Jacobs, 70 Ark. 401; St. L. & S. F. Rd. Co. v. Vaughan, 88 Ark. 138; St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154; St. L. I. M. & S. Ry. v. Shepherd, 113 Ark. 248.
(2) In the present case it is insisted that there is next sufficient testimony Ito warrant the jury in finding that the written notice was waived ¡by the railroad company but we cannot agree with the contention of counsel in this respect. It is true the agent whose duty it was to settle claims of this sort testified that there was no one in his office who had .authority to settle such claims except ¡himself land .stated that he denied liability to the plaintiff the first time he talked to him. This agent also stated that where an animal was Mlled or died in" transit it was his custom to have ¡a veterinary' surgeon examine the deaid animal to ascertain the cause of its death if pos-sible, and also to examine the remainder of the shipment to see if any of the other .stock were injured.
On the other hand, the plaintiff testified that as soon as he .discovered that his stock had been injured he went to the station agent and gave ¡him verbal notice of the injury .and off the fact that he would claim damages therefor. The station agent directed him to a certain office in Little Bock where he might put in a claim for damages. He went over to Little Bock and employed a lawyer ¡and with his lawyer went to the office to which he had been directed by the station agent. He there met a young man in charge of the office who entered into negotiations with him looking for an adjustment of his claim and who actually went .over to Argenta and examined the injured stock for that purpose. This person admitted the liability oif the railroad company and promised to settle the loss with the plaintiff. . Though the claim agent testified that the young man did not have authority to adjust the loiss, we think, under the circumstances, that the jury were warranted in finding that he did have such authority. He was left in Charge of the office by the person whose duty it was. to settle such claims and ladtually entered into negotiations looking to a settlement of them. Though the claim, agent testified that he always sent a veterinary surgeon to examine live stock for injuries, still the jury might have inferred that he sent the veterinary surgeon in question 'because bis office bad been notified tbat tbe stock bad been injured and of tbe plaintiff’s intention to claim damages.
(o) It was next contended iby counsel for tbe defendant tbat there is not sufficient testimony to warrant tbe verdict for tbe amount thereof. We do not agree with them in this contention. The contract provided that tbe amount of damages to be recovered for a dead animal should not exceed ene hundred dollars. Under this clause ef the bill of lading, though the mule killed in transit was worth more than $100, the plaintiff was limited in his. recovery to that amount. According to the plaintiff’s testimony, the injuries to tbe other stock ¡amounted to $170 and the jury returned a verdict in his ■favor for that amount. It is evident, therefore, that the jury ¡did not ¡allow him ¡anything for the ¡dead mule which tbe testimony ¡of the veterinary surgeon .showed to have died of colic, and that he wais given a verdict only for tbe injured stock. Tbe plaintiff’s testimony .as to the ¡amount of tbe ¡damages ¡sustained iby tbe stock'is ¡corroborated by other witnesses. Though the witnesses did not take up each bead of the stock in detail ¡and state tbe .amount of damage, they did state that several head of the stock were injured, and in the ones they did undertake to testify specifically .about they placed the damage ¡at ¡as much or a greater ¡amount than that testified to by the plaintiff.
There was ¡a dispute between the witnesses as to ■how the stock received their injuries and this dispute was settled in flavor of the .plaintiff.
On tbe one band tbe 'conductor of the train testified tbat there were no unusual jolts or jiars to tbe .train while it was in transit ¡from Russellville to Argenta. He also ¡denied that be examined the ¡stock ¡after the train ¡arrived at Argenta but in this he is flatly contradicted by the plaintiff. The plaintiff testified tbat be and tbe conductor examined the stock ¡after ¡the train ¡arrived ¡at Argenta and stated thaft the stock Was then in good condition. He did not claim any damages for injuries alleged to have been sustained during (the trip from Russellville to Argenta. On the other hand, he bases Ms right of action solely on the fact that the injuries to the stock, were received .after the train arrived ¡at Argenta. The testimony shows that some switching was 'done with the. car after it was seit on the side track and that when the plaintiff next saw the stock in the stock yards the next morning they were injured as testified to by Mm.
Although the railroad introduced testimony tending to contradict the plaintiff in this respect, we ¡think there was sufficient testimony to warrant the jury in finding that the .sto.dk were injured after the train had arrived in Argenta and before the plaintiff saw them the next morning. The jury might have inferred that they were injured while the car was switching ¡around in the yards ¡at Argenta or while being unloaded by the railroad company. A witness for the plaintiff had testified that he had had considerable experience in shipping stock and that the injuries to ¡stock were not from biting or kicking.
Finally it is contended by counsel for the railroad company that the court erred in refusing to instruct the jury that the burden of proof was upon the plaintiff to prove all the material allegations of the complaint. They contend that the court should have given this instruction because 'the plaintiff ¡accompanied the .sMpment of stock and on that .account was in a position to know in what place and in what manner they received their injuries and 'that, therefore, the burden of proof was npon Mm.
We do not deem it necessary to decide this question. As we have .already ¡seen, the plaintiff based Ms right of action solely on the' ground that the stock received their injuries ¡after the train had arrived in Argenta and after he had left the train. He testified positively that he ¡and the conductor examined the ¡stock ¡after the train had arrived at Argenta ¡and that they were then in g-ood condition. The record ¡shows, that the case was tried on this theory land that counsel for the railroad company were not misled in regard thereto. Under these circumstances it cannot be said that the rule contended for by counsel for tbe defendant ias to tbe burden of proof obtainsj even if it is tbe correct rule.
Tbe judgment ■will be affirmed.