83 Ala. 343 | Ala. | 1887
— The contract of the appellees with the appellant railroad company did not require the latter to deliver the cattle at New Orleans, Louisiana. It did, however, require of it that it should safely transport to Meridian, and there deliver them to the connecting road, to be by the latter forwarded to its terminus, and thence again delivered to its connecting road, and so on to the consignee at New Orleans. The entire duty of the transportation did not rest on the receiving road, nor on any one of the connecting roads. Each road was severally accountable for its own separate conduct, in transporting and delivering to the next; the last one being
The cattle were shipped at Epes’ Station on appellant’s road, in cars bedded and partitioned; and there is no complaint that they did not reach Meridian uninjured. Meridian was the terminus of the receiving road, and its contract bound it to carry the cattle no farther. Its only remaining duty, under its contract, was to safely and properly deliver the cattle to the connecting road. If it did, it performed all the duties required of it by its contract, and the present suit is without merit.
There was but a single witness examined on the trial, and his testimony, together with the shipping contract, was the entire evidence before the jury. He was, we infer, one of the firm of E. R. B. Thomas & Sons, the shippers, and was named as consignee, of the cattle at New Orleans. He testified, that he himself had prepared the cars with beds and partitions, and loaded the cattle upon them; that he accompanied them on the same train, from Epes’ Station to Meridian, and that they arrived there safely. His further testimony is as follows: “When they reached Meridian, witness saw Reeder, who was defendant’s depot-agent at Meridian, and asked him if he was going to unload his cattle, and put them into other cars, for shipment over the Mobile and Ohio road — a line connecting with defendant’s line on the way to New Orleans. Reeder replied, that he would not, but that he would have the wheels or trucks of the cars containing the cattle changed, so as to fit the gauge of the Mobile and Ohio track. Witness told Reeder, that he did not want him to have his cattle taken out of the cars they were in, and put in other cars; and if there was any unloading and reloading to do, he wanted to attend to it himself. Upon Reeder’s saying and promising
It is manifest that no duty rested on the defendant’s depot-agent, Reeder, nor on the defendant railroad company, by the mere force of its written contract, to do more than deliver the cattle safely to the connecting railroad. This the testimony admits he did.
The complaint, as amended, counts on an entire contract to deliver at New Orleans, and assigns, as a special breach, “that defendant took the cattle from the cars in which they had been loaded at Epes’ Station, and while they were in route to their destination, and put them in other cars, without the knowledge or consent of plaintiffs; and that such other cars were without bedding or partitions, and therefore in an unfit condition in which to ship cattle; and further, the defendant, in making the changes in cars aforesaid, crowded too many cattle in one car.”
Comparing the proof with the contract of affreightment, as interpreted above, it is clear that there was a fatal variance between the averments and the proof. As. we have shown, if the receiving road transported the cattle safely to its terminus, and properly delivered them to the connecting road, it is not liable for injury afterwards suffered. There is no complaint of its conduct in the transportation to Meridian, its terminus. If there was any wrong or negligence bn its part, it was in the delivery by Reeder, its depot-agent, after what is alleged to have taken place with Thomas, on
The attempt of the defendant railroad company, shown in the contract of affreightment, to relieve itself of liability, “ except for gross or wanton negligence,” and also its attempt to reduce its responsibility in the matter of delivering to the connecting road to that of mere agent of the consignor, are opposed to public policy, and can not be allowed. — Steele v. Townsend, 37 Ala. 247; Piedmont & Ar. Life Ins. Co. v. Young, 59 Ala. 476; Com. Fire Ins. Co. v. Allen, 80 Ala. 571.
Under the rules we have declared, the Circuit Court erred in refusing to give the charge numbered 1, aslced by defendant. Charge No. 3 is technically correct. Eor reasons stated above, and because other issues of law and fact may arise, we decline to pass on charges 5, 6, and 7.
Reversed and remanded.