Gulf & Chicago Railway Co. v. Ferguson-McKinney Dry Goods Co., 52 So. 797

Gulf & Chicago Railway Co. v. Ferguson-McKinney Dry Goods Co.

52 So. 797 | Miss. | 1910

Mayes, C. J.,

delivered the opinion of the court

Out of the many contentions made by appellant, we find only two that we deem necessary to notice. There is proof in this. *268record only that appellee’s goods were destroyed by being burned while in appellant’s depot. There is not the slightest proof that this fire was the result of any negligence on the part of the agents of appellant. Notwithstanding this, the court instructed the jury “that, if they should believe from the evidence that the loss of the goods occurred because of the negligence of .defendant, then they will find for plaintiff, even though they may think the liability of the railroad company had ceased as a common ■carrier.” This instruction sought to hold the appellants liable as warehousemen, in the face of the fact that they had fully •accounted for the failure to turn over the goods, within the rule laid down in the case of Yazoo, etc., R. Co. v. Hughes, 94 Miss. 242, 47 South. 682. In the above case it was held that “in an action against a warehouseman for the value of the goods destroyed in a fire which burned the warehouse, the burden is on the bailor, in the absence of proof as to the circumstances of the fire, to show that it resulted from the bailee’s negligence.” The court also said: “We intimate nothing as to the quantity of proof as to negligence which will suffice to warrant the submission of this ease to the jury, or.which will call for an explanation by defendant.” The facts of this case now on trial bring it within the rule announced above.

The court further erred in giving the fourth instruction asked for by appellee. This instruction told the jury that appellee should have a reasonable time to remove the goods from the depot, and in determining what was a reasonable time the jury might “take into consideration the distance Phillips & Murff .would have to come after the goods.” The liability of a railroad •company as common carrier is widely different from its liability •as a warehouseman after the goods have reached their destination. The liability in each case is the same as to all persons, no matter how near or remote the consignee may be to the place of delivery. If a party have his place of business distant from the depot of *269the railroad, he cannot, by reason of this fact, force upon the-railroad a greater liability in the handling of his goods than would be incurred by the railroad in handling goods for one in close proximity. The liability of the carrier as insurer of the-goods continues' after arrival of the goods at their destination until notice to tire consignee and until the consignee has had a reasonable time in which to remove his goods. All these things may reasonably be said to be within the terms of the contract of carriage. But the rule is not varied in any way by any question as to how far, or how near, the consignee may reside from the place to which he had his goods consigned. What is a reasonable time for the consignee to- remove the goods-is necessarily a question of fact, and must be largely left to the-jury; but it is to be determined with reference to what would be a reasonable time as applied to one residing in the vicinity of the place of delivery. Bor authorities we refer to appella-nt’sbrief, and to the notes under 5 Ency. Law (2d ed.) p. 263,. par. (c).

Reversed and remanded.