142 Ala. 368 | Ala. | 1904
This was an action by appellees for the value of two cases of shoes, basing their right to recovery on appellant’s liability as a common carrier, in the first count, and on its liability as a warehouseman for reward, in the second count of the complaint. The judgment was for plaintiffs for ¡¡¡¡30.16.
The undisputed facts of the case are that two shipments of shoes were received for plaintiffs, at Attalla; ■that when plaintiffs called for them, they could not carry them all, and requested defendant’s agent- to alloAv those not carried away then, to remain in the warehouse ’till they could call for them, AAdiich was assented to, and Avhen they called for them, the two cases were missing
Defendant’s Avitness (the agent) states that, when plaintiffs requested him to let the goods remain there, he assented but told plaintiff that the goods would be at their risk. Plaintiff says, that he does not remember any such remark being made to him.
The responsibility of a riailroad company keeping goods in its depot, after, the termination of the transit, is that of a warehouseman for hire, and it is bound to use ordinary diligence in keeping the goods. — M. & G. R. v. Prewitt, 46 Ala. 63, 68.
“A Avarehouseman is only bound to take reasonable and common care of the commodity entrusted to his charge.” He is bound to the observance of “ordinary diligence;” such care and diligence as a man of ordinary prudence, bestows on his OAvn affairs. — Moore v. Mayor etc. of Mobile, 1 Stewart, 184, 187; Jones v. Hatchett, 14 Ala. 743, 745.
The rule of law is that if a bailee, (such as a warehouseman) fails to deliver' the goods, intrusted to him, on demand, or does not account for said failure, “prima facie, negligence will be imputed to him, and the burden of proving a loss Avithout the want of ordinary care is devolved upon him.”- — Seals v. Edmonson, 71 Ala. 509. The burden is on him to show that the goods “perished,” Avere destroyed, lost or stolen, notwithstanding he had employed ordinary diligence in preserving it. — Haas v. Taylor, 80 Ala. 459, 465; Prince v. Ala. State Fair, 106 Ala. 341, 346, 347; Davis v. Hurt, 114 Ala. 146, 149, 150.
In this case the defendant’s agent testifies that the depot in Avhich the goods were kept, was a- safe and secure place, and that it Avas kept locked at night, and also in the day, AA'henever defendant’s employes were not present. This being a.11 the evidence on that subject, we think it Avas for the jury to determine, whether or not that was ordinary care. Consequently .there was no error in the refusal of the court to give charge No. 2 requested by the defendant.
Charge No. 4, requested by the defendant was properly refused. This charge was abstract, there not being any testimony to show that Aldredge “received the goods from the agent.” On the contrary, the evidence is clear that said goods never went out of the possession of defendant’s agent until they were lost.
For considerations before stated, there was no error in the refusal of the court to give charge 6, requested by the defendant.
There was no error in the refusal of the court to give charge No. 7, requested by the defendant, as shown by the authorities heretofore cited.
The court erred in overruling the objection to the question to Aldredge as to how far plaintiff lived from Attalla, and also in refusing to give charge No. 8, as the distance of plaintiff’s residence from Attalla had no legal bearing on the issue involved in this case.
Charge No. 9, requires too high a degree of proof. •
The refusal to give charge 10, was cured by giving charges 5 and 11.
The judgment of the court is reversed and the cause remanded.