126 Ky. 582 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
Appellee had certain hogsheads of tobacco stored at the warerooms of the Union Warehouse Company-in Louisville. A private railroad switch, not owned nor controlled by appellant, extended alongside the warehouse. Appellee notified appellant of its desire-to ship the tobacco over appellant’s line of road from Louisville to Chicago, and requested that a car for the purpose be placed on the siding at the warehouse to receive it. Appellant placed the car as requested. The warehouse company was notified by appellee to load the tobacco. After the car was placed, the warehouse company put the tobacco on the platform of its warehouse alongside the car, for the purpose of loading it as soon as its laborers could conveniently attend to it. Appellee was notified that the tobacco was loaded, whereupon it prepared a bill of lading in the customary form and presented it to appellant’s
A bill of lading issued by a common carrier is only prima facie evidence of the receipt of the goods described in it. It is open to explanation, and imposes no liability on the carrier as an insurer, unless the goods are actually delivered. Elliott on Eailroads, section 1419; Hutchinson on Carriers, sections 121-123. If the fact had been that the goods had been destroyed by fire before they were actually delivered to the carrier, as, for example, in this case, while they were still on the platform of the warehouse, the
Nor do we find merit in appellant’s contention that it was not notified of the loading of the tobacco after it was loaded. It was notified of the shipper’s purpose to load it at the warehouse, and placed its car there to receive it. It signed the bill of lading evidencing its receipt, which was of itself notice that the car had been or was being loaded. When the car was loaded and sealed, a further notice of that fact was not necessary to apprise the carrier of what it already knew, namely, that it was ready for shipment; for notice might be given in advance, or might even be waived. "When the tohacco was actually delivered into the carrier’s car in accordance with the bill of lading, its physical delivery to the carrier for the purpose of transportation was completed. The prima facie character of the bill of lading became absolute upon proof of the subsequent actual delivery in accordance with its terms, the delivery being in such close proximity to the issuing of the bill as to be for all practical purposes a part of a single transaction. The doctrine that an acceptance by the carrier is essential to the creation of its contract liability is sound and undisputed. It would be most unjust if the shipper could deposit his goods in the carrier’s ear without notice to the latter, and fix a heavy lability upon it as an absolute insurer, while
It was shown in the case that the custom of dealing between the parties was followed. The goods were delivered in the'same manner, at the same or similar place. The bill of lading was signed simultaneously or in advance of the loading. The previous custom had been for the carrier, without further notice, to have the car transported to its own line by the bridge-company’s locomotives and servants in the usual course of their business. The plan usually followed was probably a feature and incident of the conditions existing in cities of the size of Louisville, where a number of railroads center, having different warehouses and depots, and where there are many manufacturing plants and public warehouses situated upon
The action of the circuit court and its judgment being in conformity to these views, the judgment is affirmed.