100 Ala. 263 | Ala. | 1893
Where goods are delivered to a common carrier lor transportation to a point beyond its own lines under a through bill of lading, which, however, contains a stipulation exempting the receiving carrier from liability from loss or damage occurring beyond its own terminal, and the goods are not delivered- to the consignee at all, the presumption of law is that they were lost by the receiving carrier, and he will be liable unless he can show that the consignment was safely delivered to the connecting carrier; the burden is on him in such case, and plaintiff having shown non-delivery by the discharging carrier is entitled to recover without more. Ga. Pac. Ry. Co. v. Hugh art, 90 Ala. 36, and cases cited.
On the other hand, where upon such shipment and bill of lading the goods have been delivered by the connecting or final carrier to the consignee, or have been carried to-the place of consignment for delivery, and are then in a damaged condition, the presumption of law is that they were delivered by the receiving to the connecting carrier in good condition, and that the damage occurred while they were in the possession of the delivering carrier; and, therefore, in an action against the receiving carrier for damages occasioned, not by the loss, destruction or non-delivery of the property but, by the injuries inflicted upon it at some time before delivery to the consignee, the presumption of safe delivery by the first to the second carrier must be overcome by evidence that the damage occurred before the shipment passed out of the possession of the first carrier; the burden in this latter case is upon the plaintiff, and unless he discharges it, he fails to malie out his cause of action and must be cast. The presumption of law being that the delivering carrier has damaged the property in an action by the owner against him, the plaintiff need only prove the shipment in good condition and the delivery in damaged condition. M. & E. Ry. Co. v. Culver, 75 Ala. 587; Cooper & Co. v. Ga. Pac. Ry. Co. 92 Ala. 329.
The present action is by the consignor against the receiving carrier, the goods being destined to a point on the line of a connecting carrier. There was a through bill of lading, but it stipulated for. the non-liability of the defendant for loss, destruction or injury occurring beyond its own line. The evidence showed without conflict that the goods were delivered to the consignee by the connecting carrier, but in a damaged condition, and a recovery of damages for injuries, and not for non-delivery is sought. There was no evidence that the damage to the property occurred
Reversed and rendered.