54 So. 54 | Ala. | 1910
It is well settled that a common carrier becomes responsible as such only when freight is delivered to and accepted by it for immediate transportation in the usual course of business. If the goods are received, but 'Something remains to be done before the goods can be sent on their way, “as where the goods are deposited without instructions as to their place of destination, or to await orders, or until the charges for transportation are paid, if that is required by the carrier,” the duty and responsibility of the carrier is not that of an insurer, but that of a warehouseman who must exercise ordinary care for their safety.—A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 South. 356; L. & N. R. R. v. Echols, 97 Ala. 556, 12 South. 304; Hutch. on Carriers (3d Ed.) § 72; Moore on Carriers, 258-9; Barron v. Eldridge, 100 Mass. 458, 1 Am. Rep. 126; Dixon v. Central Rwy. Co., 110 Ga. 173, 35 S. E. 369. Counts 3, 4, and 5—the rest were taken out of the case by rulings favorable to the appellant — proceeded, not upon defendant’s responsibility as a common carrier, nor upon a breach of contract for carriage, but for negligence in and about the performance of duty imposed by law upon defendant as a warehouseman after it had received plaintiff’s cattle preparatory to putting them on their way — -its duty as a warehouseman. The averment of counts 3 and 4 is that “defendant, or its servant or agent at Guin, Alabama, received said cattle in defendant’s said stock yard preparatory to shipment,” where “it was the duty of the defendant to use due and reasonable care to receive and safely transport and deliver said cattle to the consignee thereof at Birmingham, Alabama.” The averment of the fifth count is that “the defendant conducted themselves in and about receiving said cattle for shipment,” etc. Some of the language quoted seems to have been used without
A railroad company, holding itself out as a carrier of live stock, is under legal obligation, arising out of its relations with the public, to provide proper facilities, such as stock yards, for receiving live stock offered to it for shipment.—Covington Stock Yards v. Keith, 139 U. S. 133, 11 Sup. Ct. 469, 35 L. Ed. 73; Moore on Carriers, 500, 501. This duty on the part of defendant being alleged, and the occasion for the exercise of care, namely, the receipt of plaintiff’s cattle, not for immediate shipment, but prepatory thereto and in anticipation of a contract for shipment to be made, the further averment that defendant’s stock yard, was insecure and unsafe necessarily implies negligence; and it being shown in the complaint that the insecurity and unsafety of the yard resulted in injury to plaintiff, a. cause of action is stated. And the conclusiveness of this result as matter of law is not affected by the fact that the pleader added an averment of further and cumulative negligence, also affecting the safe receipt and keeping of the animals for shipment, by alleging that an agent of defendant, operating a train, negligently blew the whistle of his engine, as a proximate consequence of which — both which, as we think count 3 must be construed , unless violence be done to the language used— plaintiff’s cattle were greatly frightened and caused to break out of the stock yard, and were greatly scattered and damaged.
Our cases are legion in which general averments, analogous to those of the fifth count, have been approved.
There was no error in overruling the demurrers to counts 3,. 4, and 5.
In the complaint it is alleged that plaintiff’s cattle were received into the stock pens on the 7th day of March, 1908, and the averment is that they were injured on that day. Plea 5 brings into notice a contract of affreightment entered into between the parties on the next succeeding day. By the contract plaintiff agreed to load the stock upon the car. It also contained the following clause: “Third. For the consideration afore
Plea 7, demurrer to which was sustained, seems to have bene designed to set up • a clause of the contract (heretofore referred to) which was in this language: “Seventh. For the consideration aforesaid the shipper agrees to waive and release and does hereby release the company from any and all liability for or on account of delay in shipping said stock after delivery to its agent, and from any delay in receiving the same after tender of delivery, and for breach of any alleged contract to furnish cars at any particular time, and the shipper hereby releases and does waive and bar any and all causes of action for any damage whatsoever that has accrued to the shipper by any written or verbal contract prior to the execution hereof concerning said stock or any of them.” The plea sets out the contract, and then avers that the alleged injuries sustained by plaintiff accrued before the execution of said written agreement. The recital in the contract that the rate is a reduced rate is prima facie evidence of that fact; and, the shipper having executed the contract, we have no choice but to presume, in the absence of fraud, mistake, imposition, or incapacity alleged, that he knew and consented to its terms. But the circumstances usually attending the execution of contracts creating special limitations upon the liability of the carrier for his own defaults are such that the courts unanimously hold that they are to be strictly construed against the carrier. Such must in reason also be the rule in respect to a release against accrued damages obscurely tucked away in the belly of an elaborate contract for carriage. The contract in question stipulated a release of damages accrued by any written or verbal contract prior to the
There is no error in the record, and the judgment will be affirmed.
Affirmed.