71 Ala. 611 | Ala. | 1882
By the common law a common carrier is absolutely liable for the safety of goods entrusted to him for tranportation; he is responsible for all injuries or losses, which, in the language of the books, can not be directly “traced to the act of God, or of the public enemy, or of the party complaining.”—1 Smith’s Lead. Cases (7th Amer. Ed.), 411. For goods which he fails to deliver, the measure of his liability is the value of the goods at the place of delivery, at the time at which they ought to have been delivered.—-Angelí on Carriers, § 482. Proof that goods entrusted to him for transportation and delivery have not been delivered, a reasonable time for transportation and delivery having passed, is prima facie evidence of a loss by his fault or negligence, and sufficient to charge him with their value.—M. & W. P. R. R. Co. v. Moore, 51 Ala. 394; S. N. N. R. R. Co. v. Henlein, 52. Ala. 606; Angell on Carriers, § 202.
The liability of a common carrier is sometimes said to be of a dual nature; the one, a liability for losses by his own negligence or omission of duty, or that of his servants or agents, which is the liability of an ordinary paid agent or bailee; the ■other, a liability for losses by mistake or accident without any fault on his part; for losses occurring by unavoidable accidents, not within the exception of “ the act of God, or of the public ■enemy, or the. fault of the party complaining,” which is of the nature of the liability of an insurer, having its origin and foundation in the policy of the common law.—Davidson v. Graham,2 Ohio St. 131. Whatever doubts may at one time have been entertained, it is now well settled, that by special contract
In the "present case, the bill of lading, given on the receipt for the goods which have never been delivered, on its face stipulates, “that, in consideration of rates inserted, it is agreed that, in case of loss or damage, the same shall be ad justed at a valuation of twenty dollars per barrel.” The bill of lading carefully stipulates for the exemption of the carrier issuing it, if the freight was delivered to a connecting line for transportation to its destination ; and there are several of its stipulations that might provoke remark, as to the care with which the carrier receiving the goods was seeking to absolve itself and its associates in transportation from all liability. We confine ourselves to the case before us. The shipment was of a single barrel of alcohol, and its delivery in good order to the appellant, a connecting line with the carrier issuing the bill of lading, for transportation to a station on the appellant’s line of road, is an undisputed fact. The fact is also undisputed, that a reasonable time for transporta
The affirmative instruction given by the Circuit Court recognizes the reasonableness of the limitation as to the amount of damages for which the carrier or its associate in transportation was liable in the event of loss, if it was made in consideration of reduced freight; but affirms that if there was delivery to the appellant, and a failure to deliver at the point of destination, the burden of proof was on the appellant to acquit itself of negligence because of the failure to deliver. The general rule, applicable to all bailees of goods, chargeable with losses or injuries occurring fi’om negligence, is, that if upon demand made, they fail to deliver, and do not account for the failure, negligence will be imputed, and the burden of proving a loss without the want of ordinary care is devolved upon them. — Seals v-Edmondson, ante, p. 509. When the risks or accidents for which a common carrier is liable are limited by a special contract, the burden of proof rests on the carrier to show, not only that the cause of the loss was within the terms of the limitation, but also that, on his own part, there was no negligence. “The coi’rect view,” said R. W. WalKbe, J., in Steele v. Townsend,- supra, “ is, that the loss is not brought within the exception, unless it appears to have occurred without negligence on the part of the carrier; and, as it is for the carrier to bring himself within the exception, he must make at least a prima faeie showing that the injury was not caused by his neglect.” In 2 Greenleaf’s Evidence, § 219, it is said: “In all cases of loss by a common carrier, the burden of proof is on him to show that the loss was occasioned by the act of God or by public enemies. And if the acceptance of the goods was special, the burden of proof is still on the carrier to show, not only that the cause of the loss was within the terms of the exception, but also that there was, on his part, no negligence or want of due care.” The carrier can not stipulate for an absolute, unqualified exemption from all liability, nor can he stipulate that he will answer, in any and all events, only for a sum less than the value of the goods, because, in consideration of reduced rates of freight, the shipper may assent to it. For immunity from liability for his own frauds no bailee can stipulate; “ for no man shall contract to be safely dishonest.” — Story on Bailments, § 32. This is the rule as to'bailees who do not exercise public employments, who are not bound to the duty of serving a,ll who may require their services, who may select their own customers, and
The charge requested was extracted almost literally from the closing sentence of the court in Magnin v. Dinsmore, 70 N. Y. 410, (S. C. 26 Am. Rep. 608). The case belongs to that class of cases in the New York courts, reviewed in Jdaihroad Oom-pa/ny v. Lockwood, 17 Wall. 357, which holds that common carriers may stipulate for exemption from liability for the negligence of themselves or their servants. That rule has not prevailed in this court; on the contrary, we have adhered to the doctrine, that a contract by which a carrier undertakes to
"We find no error in the rulings of the Circuit Court, and its judgment is affirmed.
