128 Ala. 537 | Ala. | 1900
The defendant pleaded the general issue, and a special plea, that the property ivas delivered to it as a common carrier at Florence, Ala., -under a contract expressed in the bill of lading, whereby it was stipulated and agreed that defendant -should not be liable “for any loss thereof- or damage thereto by causes beyond its control or by floods or fire,” alleging “that while said property was in it-s posssesion and during the transportation, said property was destroyed by fire, and that said fire and said loss were not the result of negligence on the part of defendant.”
There was a demurrer to this plea on several grounds, but no judgment thereon appears, and it will be treated as waived.
The plaintiff filed replications to this plea, “ (1st.) That there was no consideration moving from defendant to the plaintiff for the special limitations limiting liability. (2d.) There was no consideration moving from the defendant -to the consignor of the goods for the special limitations limiting liability, and (3d.) The bill of lading was not signed by the shipper or his agent.”
The defendant moved to strike replications one -and three, and the judgment entry shows, ijn proper form of judgment, that the motion was granted; but the motion, ruling of the court thereon and exception to the ruling, do not appear in the bill of exceptions.
The case was tried, therefore, on the general issue; on issue joined on the defendant’s special plea, and on issue joined on the replications to defendant’s said -special plea. Stated in condensed form, the issues were, whether or not there was any binding special contract, such as is set up in said special plea; and if so, whether while the property was in the posession of defendant
It was shown that the car was properly packed without waste or shavings, and that the wagons could not be very easily removed from the car by an inexperienced person, and could be much more easily removed through one door of the. car, than through the other. They were taken to pieces for shipment.
This proof, without more, entitled the plaintiff to a verdict.
The defendant proved that the W-agon Works had, for its own convenience, its own bills of lading in blank, and made out the one offered in evidence in triplicate and sent-them with the car when loaded to the agent to be signed; that the agent signed the three, one was kept by the railroad company, and two were returned to the shippers, one of which they retained, and the other they forwarded to the. consignee. The plaintiff objected to the introduction of this receipt, or bill of lading, because it was not signed by the Florence Wagon Works, nor by the plaintiff; and because it was not shown that the plaintiff authorized' the Florence Wagon Works to- accept a shipping receipt'or bill of lading, containing exemptions from liability by fire. These objections were without merit. Made out and accepted as a shipping-receipt by them and acted on by them as such, it was not necessary to be binding on them, for them' to sign the
In this connection it may be stated, that it ivas not proper for the court to allow this witness to state, that the classification and rates charged were approved by the Interstate Commerce 'Commission. If it was important to show the rulings and orders of that commission, higher and better evidence — the rulings themselves — was required, and they could not be shown by parol.
The rule applying in such cases has been aptly stated to be, that “in all cases not free from doubt, either where the evidence is conflicting, or where it is not, and different minds may draw different inferences or conclusions on the subject, the question of negligence is one of fact for the determination of the jury. It becomes a question of law to be determined by the court, only when the case is so free from doubt as that the inference of negligence to be drawn from facts is clear and certain.” E. T. V. & G. R. Co. v. Bayliss, 74 Ala. 151, 161; City Council of Mont. v. Wright, 72 Ala. 411; Wilson v. L. & N. R. R. Co., 85 Ala. 269; 16 Am. & Eng. Ency. Law, 465, 468, and notes.
The burden of proving that the loss occurred AAdthout
Seay, the flagman, testified that standing in the cupola with the conductor he saw the fire, which burst out 1: w ■from a big pile, of kindling; that he did not go to the burning car, but went back to the, top of the hill, as the rules required him to do, to signal any train that might be coming behind them, the rule being, that if for any reason the forward train is required to stop it must send back the flagman, 1o flag any train that may be behind; that he stayed about 50 minutes when they called him in; that when they got to Warrior, about two-thirds of the top of the car was on fire, and 25 or 30 people wen* there.
Frank fchnith, a brakeman, testified that after turning over the hill below Blount Springs, being on the 3d car from the engine, he saw smoke coming from under the edge of the roof of the car of wagons; that the swing-man ran to tell the conductor, and witness ran to tell the engineer; that when he went back, there was no blaze coming out, and he could not get water from the bucket he brought with him from the tender into the fire; that the conductor then had them to open the door, when they saw the blaze in the back end of the car, but could not get to it; that he then went back to the engine
. The evidence for defendant further tended to show that after the car arrived at Warrior, where they had no arrangements for extinguishing fires and with the. appliances at hand, the fire could not have been extinguished.
We have been -careful to set out, in as brief space as possible, the main features of the evidence bearing on the question in hand a-s delivered by the witnesses. It occurs to ns, assuming that- there is no material conflict in the. evidence1, as contended by defendant, that different, minds might reasonably draw different inferences and conclusions tliereform, as to whether defendant’s employes by due care and diligence might or not have extinguished the fire when it was first discovered. This involves the other inquiries, whether they were dilatory or not in bringing water from the tank to pour on the flames at the place in the car at Avhicli the flame •appeared at the time to be confined;.whether or not they cut a large enough aperture in the roof through which to flood the fire when discovered, and whether they might not have used more water for the purpose than they did; whether or not, the conductor exercised good discretion in -opening one of the doors of the car, which admitted fresh quantities of air to the. flames; and whether or not it was best- to go to Warrior, where there were no facilities for extinguishing the fire, or return to
We cannot, without extending this opinion to an extraordinary length, for no good purpose as it seems to us, follow the vast array of assignments of error not likely to arise on another trial. We. have considered those most material, and in so doing have stated principles sufficient -for the guidance of the court on another trial.
Reversed and remanded.