PETERS, J.
It is now too well settled in this State to admit of question, that railroad companies are common carriers, and as such, that they are amenable to the liabilities imposed by the law applicable to common carriers, as the same is administered in this State.—Selma & Meridian R. R. Co. v. Butts & Foster, 43 Ala. R. 385; Jeremy’s Law of Carriers, 4, chap. 1; Redf. on Car. p. 27, chap. 3, § 37, and the numerous authorities cited in the notes. There is no question made in this .court as to the place of making the contract of transportation, or undertaking the duty to transport. The proceeding will, then, be treated as a transaction governed by the common law applicable to common carriers. The suit here is against the corporation only as a common carrier, and not as a warehouse keeper or a common bailee of goods and chattels delivered, to be kept safely for shipment. And the dominant question in the case is, when does the liability of the railroad company for transportation of goods and other articles to be carried on this road begin? Certainly, just where that of any other common carrier’s liability would begin; that is, as soon as the goods are delivered and received for transportation.—Marriam v. Hartford and New Haven R. R. Co., 20 Conn. 354" court="Conn." date_filed="1850-07-15" href="https://app.midpage.ai/document/merriam-v-hartford--new-haven-rail-road-6576350?utm_source=webapp" opinion_id="6576350">20 Conn. 354; S. C., 2 Amer. Railway Cas. 135; Story on Bailm. p. 537, § 532; see, also, Hannibal Railroad v. Swift, 12 Wall. 262" court="SCOTUS" date_filed="1871-11-20" href="https://app.midpage.ai/document/hannibal-railroad-v-swift-88389?utm_source=webapp" opinion_id="88389">12 Wall. 262. In this State, under our statute, there is a duty imposed by law on the carrier to give “a receipt” for the article delivered for transportation. — Rev. Code, § 1883. *588The goods or articles to be carried must be delivered for transportation, before the liability for their loss or injury, or for a failure to forward them in due course of transportation, is incurred. In this ease, the cotton was lost before the actual transportation was commenced. The question, then, upon which the cause is to be determined in its present shape, is this: Was there a delivery of the cotton lost, for transportation, to the railroad company, or its agent, before the loss ? If there was such delivery for transportation, then the company are liable; if there was not, then the company are not liable as common carriers. Whether there was such a delivery or not, is a matter of fact, and it must be determined by the jury. Governed by this exposition of the law, the learned judge in the court below erred in refusing to give the first, sixth and seventh charges asked by the defendant on the trial before the jury. It is, nevertheless, contended by the learned counsel for the appellee, that there should be no reversal in this case, even if there has been error in the action of the court below; because, I suppose, he presumes that all the evidence delivered to the jury on the trial is set out in the bill of exceptions, and this shows, taken as a whole, that the plaintiff ought to have recovered. This may be true, as the case was presented to the jury on the trial. But we have seen that that presentation was inaccurate, in failing to bring' to the attention and consideration of the jury the law of the whole case. The refusal to charge that a delivery for transportation was necessary to bind the defendant, sanctioned a finding against the corporation without such proof; which was erroneous. And this error is of such a character that it may have defeated the defense, when it should have prevailed, upon a proper presentation of the law on both sides. It would have been improper for the court below to have charged the jury, that if they believed the evidence they must find for the plaintiff. Such a charge would have been an invasion of the province of the jury. It would have made the verdict, in truth, the verdict of the court, regardless of the jury. This is error.—Battle v. Weems, 44 Ala. *589105. If this court should affirm such a judgment, it would ignore the jury altogether.
I purposely omit to discuss the other charges given and refused in the court below, as what has already been said will enable the court, upon a new trial, to charge the law correctly. And nothing is intended to be declared as to what facts will prove a delivery for transportation.
The judgment of the court below is reversed, and the cause is remanded for a new trial.