Southern Railway Co. v. Renes

68 So. 987 | Ala. | 1915

Lead Opinion

SOMERVILLE, J.

The gravamen of the complaint is that the defendant was negligent in transporting the corpse of plaintiffs son from Washington to Birmingham, in that it was not carried to its destination on the same train with plaintiff, as was agreed to be done. This breach of duty is predicated on the allegation of the complaint that the “corpse ivas tendered to defendant after plaintiff had paid said fares and in time for defendant to have taken and carried” it on the same train upon which it carried plaintiff.

(1) The fact that a through passage is sold over a receiving and connecting line does not show such a relation between the lines as to- render the terminal line prima facia liable for any breach of contract or duty on the part of the receiving line. — M. & W. P. R. Co. v. Moore, 51 Ala. 394; K. C. M. & B. R. Co. v. Foster, 134 Ala. 255, 32 South. 773, 92 Am. St. Rep. 25; So. Ex. Co. v. Saks. 160 Ala. 621, 49 South. 392.

“The responsibility peculiar to a common carrier is not devolved on the next connecting carrier, until the receiving carrier has delivered the goods to the former with directions for their shipment, the place of destination, and to whom consigned. Until this is done, the relation of common carrier is not established between the shipper and the connecting carrier.” — Mt. Vernon Co. v. A. G. S. R. Co., 92 Ala. 296, 8 South. 687. To relieve the first carrier from further liability and charge the second carrier, it is necessary that the goods be delivered or properly tendered by the first carrier to the second. — 6 Cyc. 486, 487.

(3) The only evidence in this case of a delivery of the corpse by the receiving carrier to the defendant, as the terminal carrier, is found in the plaintiff’s statement that, as the Southern train was leaving the depot at Washington, he saw the coffin on, a) truck. In the absence of any evidence showing a course of dealing' between these carriers by which placing and leaving a coffined body on a depot truck in the neighborhood of the terminal carrier’s track constituted a tender or delivery to it for immediate transportation over its line, no inference can justly arise of a default on its part.— Mt. Vernon Co. v. A. G. S. R. Co., 92 Ala 296, 299, 8 South. 687; M. & E. Ry. Co. v. Kolb, 73 Ala. 386, 49 Am. Rep. 54.

(4) The burden of proof was upon the plaintiff to sIioav a tender or delivery of the corpse by the receiving carrier to the terminal carrier in reasonable time for transportation on plaintiff’s train, as an essential foundation for the breach of duty charged; and, failing to do this, as was the case, a peremptory instruction should have been given for the defendant, as requested.

(5) Where a witness does not-fully understand the English language, as by reason of its not being his mother tongue, it is of course proper for the jury to be informed of his deficiency in this regard in explanation of his responses to the questions propounded to him. The trial court, therefore, did not err in allowing the plaintiff, who is evidently of foreign birth, to state that he had sometimes had difficulty in expressing himself in English.

(6) We think, however, that the court erred, with probable predjudice to the defendant, in allowing the plaintiff to state that he “was not an educated man, and did not have the benefit of the schools.” It would be unfortunate, and, indeed, intolerable, for the element of a plaintiffs educational deficiency to be injected into case like this, without relevancy to the issues, and with a large capacity for the creation of a predjucial sympathy which might find ready, even if unconscious, expression in a verdict carrying damages chiefly for a sentimental injury. Its admission cannot further the ends of justice, and it ought always to be excluded, unless the peculiar issues of-a particular case should render it relevant.

It is unnecessary to pass upon the merit of the motion for a new trial, founded on the charge that the verdict is greatly excessive in amount, in view of our other conclusions.

For the errors, noted the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Ti-iomas, JJ., concur.

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Rehearing

ON REHEARING.

SOMERVILLE, J.

It is insisted that the defendant was not entitled to the affirmative charge in this case because a presumption must be indulged, in the absense of opposing evidence, that any delay in the transportation of the body occurred on the line of the terminal carrier, and that it must affirmatively acquit itself of negligence in that behalf.

(7) The authorities relied upon relate only to presumed damage or loss where the goods are actually received by the terminal carrier. — So. Ex. Co. v. Hess, 53 Ala. 19, So. Ex. Co. v. Saks, 160 Ala. 49 South. 392, and other cases. The rule in those cases, is, indeed, of universal recognition. It is justly based upon the idea that a condition which is in its nature continuous has, in fact, continued. — C. of Ga. Ry. v. Chicago Varnish Co. 169 Ala. 289, 290, 53 South. 832.

From the rule of presumed loss or damage plaintiffs counsel would deduce the rule of presumed delay by the terminal carrier. But the reason which supports the one rule does not logically support the other, and it has been held that the plaintiff must show that a delay complained of was due to the fault of the defendant terminal carrier. — E. T. etc., Ry. Co. v. Johnson, 85 Ga. 497, 11 S. E. 809; Almand v. Ga. R. & B. Co., 95 Ga. 775, 22 S. E. 674. The latter case is cited with approval in 6 Cyc. 491, note 40. The opposing view seems to have been adopted in the case of Harper Funiture Co. v. So. Ex. Co., 144 N. C. 639, 57 S. E. 458, 12 Am. Cas. 942, though the conclusions was based in part on certain facts judicially noticed by the court.

(8) But, whatever we might hold as to that, there is in this case, under the pleading and proof, no room for the application of the presumption invoked. The complaint charges that plaintiff paid defendant two full fares to transport himself and the body from Washington to Birmingham on the same train, and alleges that after such payment of fares the body was tendered to defendant in time to be carried on the same train with plaintiff from Washington to Birmingham: After the arrival of the Pennsylvania train, the body was removed from its car and placed on a truck, and within ten minutes the Southern train left the station. It does not-appear, and it cannot be presumed, that within that brief space of time the defendant carrier was informed of the presence of the coffin and the duty of immediate transportation on the same train with plaintiff, coupled with a timely tender for that purpose. The question is not simply one of unreasonable delay in transportation, but, specially, the breach of an express agreement to carry on the same train with plaintiff. The evidence locates the time and place of the failure, and plaintiff was bound to prove the special breach alleged. Certainly no specific presumption of a timely tender to defendant for this particular undertaking can arise in such a case as this.

Counsel criticize with some warmth the ruling that the admission of evidence that plaintiff was not educated in “the schools” was reversible error. We think it must be apparent to the unbiased mind that the absence of such education does not tend to show that an adult person cannot or does not understand the meaning.of the ordinary speech of the country in which he lives. If we justified its admission in this case, it would of necessity be admissible in every case in which a party is a witness, and such a practice cannot be sanctioned.

We reaffirm, with emphasis, all that we have said on this subject.