183 Ky. 555 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
By this action, commenced in the Jefferson circuit court, Edwards sought to recover of the Louisville & Nashville Railroad Company the value of a car load of merchandise,, consigned by him at Highland Park to himself at New Haven, Kentucky, and which goods were destroyed by fire after the same had been loaded into a box car provided by the railroad company for the transporta-: tion of the consignment. The value of the goods was alleged to be $6,138.14. Edwards asserts that the car was fully loaded and placed in the possession of the railroad company as a common carrier, for immediate shipment on Monday evening, April 5, 1915, about 6:30 o’clock, and that the agent of the company then and there .received and accepted the car for immediate shipment; while the appellant company says the car was only partly
A trial resulted in a verdict and judgment in favor of EdAvards for $6,138.14, and tire railroad company appeals.
If the goods were in the possession of the railroad company, as a common carrier, for immediate shipment at the time of the fire, the company is liable as an insurer of the goods; but if there remained something to be done to the goods or car by Edwards before the same Ayas ready for shipment, then the company’s liability Avould he such only as attaches to a bailee or warehouseman for negligence. As there is no charge of negligence EdAvards’ cause fails, unless the car of merchandise Avas in the possession of the railroad company as a common carrier.
The general rule is that a common carrier is liable to the shipper as an insurer, for the value of the goods, if the goods have been actually or constructively delivered to the shipper and actually or constructively accepted by it for immediate shipment. The common laAv liability of a carrier, as an insurer of freight, does not attach until the freight has been delivered to it, either actually or constructively for immediate carriage. If the goods are delivered to the carrier to be held until the shipper directs the carrier to forward the goods, or until the shipper does some act with respect to the goods or the shipment, the carrier is not liable as an insurer, but only for negligence which contributes to the injury or destruction of the goods. A bill of lading is not necessary to show delivery of the goods to the carrier or its acceptance of the shipment, and an acceptance by the carrier may be 'complete without a bill of lading having been issued for the shipment. On the contrary, a bill of lading issued by a carrier before the goods are delivered to it, does not render the company liable. The general rule is thus stated in 4 R. C. L., section 172: “Where goods are placed for shipment in a car which is left standing on a side track by a carrier for that purpose, and the railroad
Edwards applied to the railroad company’s agent, at Highland Park, for a box car in which to load and ship a quantity of merchandise to New Haven, Kentucky, and asked if he could have-a special freight rate. A few days later he Avas informed by the agent he could have the car
The question of fact was submitted to the jury by the following instructions:
“1. If the jury believe from the evidence that on the afternoon or evening of Monday, April 5, 1915, before or at the time the car of the defendant referred to in the evidence was sealed by Earl Mock, the agent of the defendant at Highland Park, the plaintiff, J. T. Edwards, told or informed the said agent Mock that the loading of said car was completed or that said car was ready, then in that event the law is for the plaintiff and the jury should so find, notwithstanding the fact admitted by the evidence that no bill of lading was issued by the defendant to the plaintiff for the shipment of said goods or property.
“2. But, unless the jury believe from the evidence that on the afternoon or evening of Monday, April 5, 1915, before or at the time the said car of defendant referred to in the evidence was sealed by Earl Mock, the agent of the defendant at Highland Park,- the plaintiff, J. T. Edwards, told or informed said agent Mock that the loading of said car was completed or that said car was ready, then the law is for the defendant. Or if the jury believe from the evidence that on the afternoon*562 or evening of April 5, 1915, before or at the time said car was sealed by the defendant’s agent, Mock, the plaintiff said or informed said agent Mock .that he, the plaintiff, had some more goods to go into the said car on the following morning, then in that event the law is for the defendant and the jury should so find.”
Appellant insists that the second sentence in instruction No. 2 erroneously placed the burden upon the company to show that Edwards had more goods to go into the said car on the following morning, and that this part of the instruction is in conflict with the first part of the same instruction. The instruction in this particular could have been more aptly drafted, but the second sentence seems to be only an explanation of the first part of that instruction. It would be difficult to conceive of a jury being misled by an instruction which tells them unless you believe from the evidence at the time the said car of defendant, referred to in the evidence, was sealed by the agent of the company, the plaintiff Edwards told or informed said agent that the loading of said car was complete, or that said car was ready, then the law is for the defendant. This is but the converse of the first instruction. It would have been better had the court omitted the second sentence of instruction No. 2. But when the whole instruction is read together, it presents only the converse of instruction No. 1, and is not prejudicial to the rights of appellant, although it is erroneous. Instruction No. 1, offered by appellant, has no place in the law of this case as there was no evidence to support it. The only issue of fact Avas presented to the jury by the instruc-" tions given by the court: Was the car delivered to and accepted by the company as a carrier for immediate shipment? There Avas no evidence whatever to support appellant’s offered instruction on the inherent infirmity of the goods. When the car Avas discovered on fire, the seal Avas broken and the Avest door was opened. Several hoboes were loitering around the depot premises that night. No doubt the fire was started in order to cover a theft.
Appellant complains of the action of the trial court in striking paragraphs Nos. 2 and 3 of its answer. By the second paragraph of its answer, appellant avers that it was not guilty of negligence with respect to the consignment of goods in question; that its agents did not ignite or cause to be ignited the goods of appellee; that it
There appearing no error to the prejudice of the substantial rights of appellant, the judgment is affirmed.