Louisville & Nashville Railroad v. Gidley, 119 Ala. 523

Louisville & Nashville Railroad v. Gidley

119 Ala. 523 | Ala. | 1898

Lead Opinion

COLEMAN, J.

The appellee sued the appellant to recover damages for the loss of two lots of leather received by it, as a common carrier, from plaintiff, to be delivered to certain parties in Philadelphia, the contract being evidenced by the bill of lading of the defendant. The leather was delivered at Gadsden, Ala. The defendant railroad company had a short line, of five miles in length, running from Gadsden to Attalla, but extending no farther, and the train on this short line left Gadsden at 4:30 p. m. of each day. The Alabama Great Southern Railroad passed Attalla going northward. The defendant railroad had a line running from Gadsden south to Calera, leaving the former point at 9:30 a. m. daily, except Sunday, and there connecting with its main line going north. This was the usual route for the transportation of freight north. The leather was delivered at about noon on Saturday, after the train had left for Calera, but before the train left for Attalla. The leather was burned on Saturday night. The bill of lading guaranteed “through rates,” and the shipper gave no directions as to the route of shipment. One of the principle questions involved is whether the defendant could be charged with negligence, under the facts and terms of the contract, for failing to ship the leather via Attalla on the 4:30 p. m. train. The writer is of the opinion that the defendant had the right to transport the leather over its usual route, and was not guilty of any neglect of duty in storing the leather for its next freight train south to Calera. It is the opinion of the court, however, under the facts *527of the case, and which are not controverted, that, as matter of law, the defendant was not justified in keeping the goods for the next freight train of defendant, which did not leave Gadsden for Galera until Monday morning — there being no freight train run on Sunday —-and its failure to ship the leather to Attalla at 4:30 p. m. on the day received render it liable for the loss which occurred by the fire. Leather is not perishable, nor subject to damage by reason- of such short delay. The parties must have contemplated the shipment of the leather over the accustomed route for carrying freight north by the defendant. — Hutch. Car. 312. It must be understood, however, that the principle is limited to cases which involve no unreasonable delay or risk, or increase of cost of transportation. We think that charges (c) and (d) given by the court expressed the law correctly. The court is of the opinion that the demurrer to the second plea, upon the grounds taken, should have been overruled.

As the case must be reversed for other reasons than the one stated, we deem it improper to discuss the evidence relative to the cause of the fire which destroyed the building in which defendant stored the goods for shipment, and the care and diligence used to preserve the leaiher from destruction by fire. The bill of lading, among other things, contained a clause exempting it from loss by fire “while in depot or place of reception.” The rule is that a common carrier, by contract, cannot exempt itself from the exercise of reasonable care and diligence, but all such provisions are construed to relieve the common carrier from absolute liability, as it would be under at common law, and impose upon it the burden of showing that it used “due care and reasonable diligence” to prevent the loss, or accident which caused the loss. — L. & N. R. R. Co. v. Touart, 97 Ala. 514, and authorities; Same v. Ocien, 80 Ala. 38. The first charge given for plaintiff exacted too high a degree of proof. We have had occasion to construe the word “satisfy,” when used in an instruction to a jury, and all such charges have been condemned.— Torrey v Burney, 113 Ala. 496. This rule has been followed in many subsequent adjudications. Charge 3 given for plaintiff is subject to the same criticism. Charge 4 given for plaintiff imposed too great a burden *528upon the defendant. It required of the defendant “to keep a sufficient watch to preserve the goods from fire.” This charge deprived the defendant of all the benefit derived from the fire-exemption clause. By the contract, the defendant was required to exercise due care and diligence. The charge imposed a liability absolutely upon the defendant, if the goods were destroyed by fire. The question is not whether there “was sufficient watch to preserve the goods,” but whether the care and diligence observed to preserve the goods or prevent the fire were reasonable, under all the circumstances. What we have said Avill be sufficient on another trial. Reversed and remanded.

Dissenting Opinion

COLEMAN, J.

Dissenting upon the proposition that, as matter of law, the retention of the goods for shipment via Calera, upon its next train, devolved a liability upon defendant. At most, under the facts, the question of negligence should have been left to the jury.