182 ARKANSAS WESTERN RN% CO. v. ROBSON. [176 ARKANSAS WESTERN RAILWAY COMPAN ROBSON. Opinion delivered February. 6, 1028. CARRIERS-INSTRUCTION AS TO SAFE CARRIAGE OF CATTLE:=Where, under bills of lading, shippers were required. to accompany their cattle in . shipment, an instruction that the carrier was the insurer of the cattle to destination was erroneous, and in conflict with other instructions requiring the shippers to prove. negligence. Appeal from Scott Circuit Court ; 'J. Sam Wood, Judge; reversed. James B. McDonough, Jr., Josephine R. Brown and James B. McDonough, for appellant. A. F. Smith, for appellee. HUMPHREYS, J. This is the second appeal in this case. On the first appeal the facts were fully stated, and reference is made to that case for a statement, of -the facts in the instant case, as the facts were not materially different on a .retriat of the cause. Arkansas Western Ry. Co. v. Robsan, 171 Ark. 698, 285 S. W. 372. The judgment was reversed and the cause was remanded for a new trial because the trial court erred in giving instruction No. 7 . at the instance of appellees, which is as follows: "You are further instructed that the burden is upon the defendant company to prove by a preponderance of the evidence that the cattle were killed by their own inherent vices, weakness and natural propensities to injure each other, and not on account of the negligence or carelessness of the defendant company." The court, in reversing the judgment, said: "Under the provisions of the bills of lading and the admission 'by the appellees that they accompanied these
ARK 183 cattle in the shipment, the burden - was upon the appel-lees to prove that the injury and Aamage sustained by the appellees resulted from the negligence of the appellant's servant." In the instant ease the court gave instruction No. 3, at the instance of appellees, which is as follows : "You are instructed :that, when a railroad company contracts to receive cattle for transportation as a common carrier, and to safely carry and to deliver the cattle to the place of destination, by virtue of its responsibility it becomes an insurer of the • cattle against all loss of every kind, except that caused by the act of God, of the public enemy, of public authority, of. the shipper, or from the inherent nature of the cattle." • This instruction erroneously told the jury that, under the bills of lading, appellant was an insurer of the safe carriage of tbe cattle to their destination. This instruction was inherently wrong and in direct conflict with other instructions which the court gave,. admonishing the jury that appellees must prove negligence on the part of • appellant in order to recover damages for the cattle killed and injured. The latter instructions could not cure the inherent defeet in the former instruction, No. 3, which was in conflict with them. On account of the error indicated the judgment is reversed, and the . cause is remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.