104 Ala. 390 | Ala. | 1893
The decisions of this court, however, in the case of railroads have established the rule to be, that when a railroad company receives goods for transportation, safely carries them to their destination, informs the consignee of their arrival, and affords him reasonable opportunity to remove them, its duty and obligationvas a common carrier are at an end; and if the goods are left in its custody, its liability, for a subsequent loss or damage is that of a warehouseman only. In that relation, it is bound only to common care and diligence. — Kennedy v. Mobile & G. R. R. Co., 74 Ala. 430 ; Mobile & G. R. R. Co. v. Prewitt, 46 Ala. 63; Ala. & Tenn. R. R. R. Co.v. Kidd, 35 Ala. 209; Hutchinson on Carriers, § 350.
After the arrival of the goods, and notices of their arrival had been given to the parties thus designated to receive such notices, and to receive the goods themselves, they remained in the warehouse of defendant — one bale of them from the 15th, and the other from the 24th of July — until the night of the 30th of that month, when they were destroyed by fire caused by an explosion of gun powder, stored in the warehouse. This was more than reasonable time within which to remove them.— C. & W. Railway Co. v. Ludden & Bates, 89 Ala. 613. The goods, therefore, were held by che defendant, at the time of their destruction, as a warehouseman, with the liabilities as such only; its responsibilities as a common carrier having terminated.
The fact that the defendant had in its warehouse at the time 1,200 lbs. of powder, is not, of itself, such evidence of negligence as entitles the plaintiff to recover. While it may be said that the keeping of large quantities of explosive material in a building in a populous town or city may be a nuisance, yet, the fact whether it is such or not, must depend on the locality, quantity of the material stored and the circumstances. Negligence in keeping it, or in the manner of its keeping, is requisite to impose a liability to answer in damages for injuries caused by an accidental explosion or fire, which ic is incumbent on the party affirming to prove. — Cook & Co. v. Anderson, 85 Ala. 105 ; Wood on Nuisances, § 140. The defendant was a common carrier of such and all other commercial materials. It is not shown that there was any city ordinance against storing the powder in its depot, for the purpose of delivering it to its consignee. It arrived on the 29th,' the day before the explosion, and the consignee was duly notified on the morning of the 30th of July, the day of the explosion, of its arrival; and, instead of being negligent, the evidence shows the defendant was very careful to preserve it against accident in a house built of iron and covered with tin and carefully guarded. There was no evidence to show how the explosion occurred, further than that there were some suspicious facts tending to show that one Ellis, an employé of the defendant, who was behind in his accounts, may have set fire to the building, for the purpose of hiding his default. But there was no evidence tending to show, if Ellis did set fire to it, that it was a negligent act of his done while in the performance of his duty. If he did it at all, it was his own tortious, wicked act, done outside the line of his employment, in which the defendant did not participate, or afterwards in any manner ratify, and for which it is not, in any wise, responsible. It is well set-
It is unnecessary to notice the other errors assigned, as to the introduction of evidence.
There was no error in giving the general charge in favor of defendant.
Affirmed.