120 Ala. 51 | Ala. | 1897
Appellee sued to recover damages for the loss by fire in appellant’s depot at Gadsden, of certain household goods which had been received by appellant at Lebanon, Ky., for transportation to Gadsden. The first count of the complaint charges defendant as a common carrier, and the second as a warehouseman. In consideration of reduced rates appellee had entered into a special contract whereby appellant was released from all liability for damages arising from fire and other specified causes, “not the result of the
At the request of the- defendant, the trial court gave the general charge in favor of defendant on the second
By the common law a common carrier becomes absolutely liable for the safety of goods intrusted to him for transportation, and responsible for any loss of or injury to the goods, not caused by the act of God, or of the public enemy, or by the fault of the party complaining-; and when loss or injury happens a, prima facie presumption of negligence arises, and the burden is on the carrier to exempt himself from liability. By special contract, however, this common law liability may be limited, but not to the extent of excepting the carrier from responsibility for loss or damage caused by his own negligence. In an action against the carrier as such to recover damages for'the loss of goods, a prima facie case is made out by proof that the carrier received the goods for transportation and failed to deliver them safely; and if the carrier claims exemption from liability under a special contract, he must show to the reasonable satis
Since the amendment to section 2756, Code, 1886, (Acts 1888-89, p. 90), providing that charges which have been refused must be retained by the clerk, and shall not be taken by the jury on retirement, it is not error for the trial court to refuse to give charges which are mere repetitions of charges already given, or contain substantially the same language without asserting different principles. Such charges not being seen by the jury, their refusal cannot prejudice the party requesting them, if the substance of the charges has been j)reviously given.—L. & N. R. R. Co. v. Hurt, 101 Ala. 49; K. C. M. & B. R. R. Co. v. Burton, 97 Ala. 260. If defendant’s refused charges 1 and 10 were not the same in substance, and did not assert substantially the same principles, as the given charges 8 and 10, then they incorrectly stated the legal effect of the special contract of of shipment in ignoring the effect of -defendant’s negligence as the cause of the loss, and were misleading, and for this reason properly refused. Charge. 8, requested by defendant and refused, is subject, in part, to the last mentioned criticism. Charges 8 and 13 do not properly hypothesize the facts in evidence. There is no evidence in the record tending to show that there 'was “no fire put in or left in said depot by defendant” at any time before the fire occurred. The testimony was that “when defendant’s depot agent left the depot about 6 o’clock on the afternoon next before the fire [nine hours before the fire occurred], there was no fire in said depot.” The charges were properly refused also because the truth of all the facts hypothesized therein would not conclusively show want of negligence on the part of defendant, and, therefore, would not authorize the court to direct a verdict in favor of defendant. The charges given at the request of the plaintiff were properly given.
We find no. error in the record and the judgment must be affirmed.
Affirmed.