102 Ala. 193 | Ala. | 1893
Appellants are plaintiffs and appellee is the defendant in this action. The complaint contains four counts. It is conceded by counsel on either hand that the third count presents the case relied on by-plaintiffs, and. that upon that count alone the trial was had. The case made thereby is the following : In October, 1890, the Pioneer Fire Proof Construction Company delivered to the Chicago, Burlington & Quincy Railroad Company, at Ottowa, Illinois, four car loads of terra cotta for carriage, and consigned to plaintiffs at Birmingham, Alabama. The defendant was also a common carrier operating a connecting line of railway on the route from Ottawa to Birmingham, and as such received the consignment from the initial carrier, “and undertook to deliver the same to plaintiffs at Birmingham for a reward.” This undertaking was not performed, the complaint avers, but to the contrary, the defendant “did not deliver all of said goods to them [the plaintiffs] , and did not deliver said goods to the plaintiffs in good or proper condition, or in the condition they were in when shipped and consigned to plaintiffs, but that said goods when delivered were badly broken and injured, and a large part thereof rendered wholly unfit for use. ’ ’ The damage to the goods is laid at four hundred dollars, which the complaint seeks to recover.
It is manifest that the case made by the averment of these facts tendered no issue of negligence vel non on the part of the defendant. The contract averred is an unconditional common law contract of carriage without reservations or exceptions. By its terms the defendant insured the safe delivery of the goods to the consignee, and assumed liability for any loss or injury resulting from any cause except such as afforded the carrier a defense at common law. The strictest proof of all possible care on the part of the carrier in the transportation and delivery of the goods would have been no defense, and,
The evidence tended to show that the goods, for injury to which this action is prosecuted, were improperly and negligently packed or loaded by the consignor, who sold the goods to plaintiffs, and it afforded an inference, or rather room for an inference, that but for this fault of the seller and consignor the injury would not have occurred. But, though the jury had found in line with this tendency of the evidence, and deduced the conclusion therefrom that plaintiffs, or those for whose acts or omissions in the premises plaintiffs were responsible, were at fault, and that such fault had a causal connection with the injury, it was yet their duty to indulge the presumption that the defendant was also negligent in and about the transportation and delivery of the goods, and that this negligence aided plaintiff’s negligence to the result complained of, there being no evidence whatever on the part of the defendant, upon whom the burden in this regard rested, nor indeed any averment, to the contrary. It follows on this state of case, the evidence without conflict showing the injury,
The only other error we find .in the record lies in the exclusion of the testimony of the witness Slater, to the effect that these cars were “well and carefully loaded.” This was the mere opinion of the witness, it is quite true, but we think a sufficient predicate had been laid to render his opinion on that subject competent evidence.
If the consignor was at fault in the loading of the consignment, the plaintiffs, in our opinion, would be responsible therefor; the fault is imputed to them, the consignor having undertaken to properly load the goods for transportation to them. If the improper loading was apparant, that is, was a fact which addressed itselm to the ordinary observation of the carrier’s servants, or if it wg,s not apparent, but the carrier was yet guilty of negligence, but for which the injury would not have happened, the carrier would be liable notwithstanding the negligence of, or imputable to, the plaintiffs. If the cars used in this transportation were close cars and came to the defendant with their doors closed, so that without opening the doors the condition of their contents could not be seen, we should say the improper loading, if they were indeed improperly loaded, was not apparent within the meaning of the rule we have stated; in such case -there would be, we think, no
What we have said will, it is thought, he sufficient for the guidance of the lower court on another trial.
Reversed and remanded.