91 Ala. 340 | Ala. | 1890
Appellee sues to recover damages for injury to one of a car-load of mules, alleged to have been caused by the negligence of defendant. The mules were shipped from Columbia, Tennessee, consigned to the plaintiff at Opelika,. Alabama, under a special contract made with the Louisville & Nashville Railroad Company. They were carried by the receiving carrier from Columbia to Montgomery, Alabama, and. there delivered to defendant for transportation to Opelika, the roads of the two companies constituting connecting lines. Deleudant sets up the special contract in defense of the action.. In the general charge the court instructed the jury, that defendant is not a party to the contract of shipment entered into-with the Louisville & Nashville Railroad Company, and that the limitations upon the common-law liability of carriers therein are restricted, and have reference alone to the transportation of the mules from Columbia to Montgomery, and do not enure to the protection of defendant.
When the transportation of live-stock is undertaken, the carrier, in the absence of a modifying contract, assumes the like responsibility for their safe delivery as a carrier of inanimate property, with the qualification, that he is not responsible for loss or injury resulting from the nature, habits, propensities, viciousness, or other inherent qualities of the animals. He may, however, contract for just and reasonable exemptions from the unusual risks pertaining to the transportation of such freight.—E. T., Va. & Ga. R. R. Co. v. Johnston, 75 Ala. 596.
By the contract of shipment, the Louisville <fe Nashville Railroad Company undertook the transportation of the mules, at a stipulated rate, from Columbia to Montgomery, and there to deliver them to the connecting carrier, in the route to their destination, no compensation being fixed for the entire distance. The contract further stipulated, that all liability of the receiving carrier should terminate when the mules are ready for delivery to the connecting line at Montgomery. Were this all, were there no words in the contract extending its benefits to the connecting carrier, it would be construed, on the foregoing principles, as having reference only to the transportation from Columbia to Montgomery, and as providing oply for immunity from liability of the Louisville & Nashville Railroad Company. But the contract purports on its face to be made with the Louisville & Nashville Railroad Company, “and its connecting lines”, as party of the first part, and by it the shipper releases the Louisville & Nashville
The contract, in terms, refers to and provides for the transportation of the mules over the connecting road, and makes provision for delivering upon terms and conditions acceptable to the second carrier, if unwilling to transport upon the terms and conditions of the contract, and for their extension to the benefit of such carrier, if there be no stipulation otherwise. There is no pretense of any other stipulation. The mules were carried from Montgomery to Opelika in the same car in which they were shipped from Columbia, and by the same waybill. The provisions of the contract, defendant’s acceptance and receipt of the mules for transportation, in the same car furnished by the receiving carrier, without a stipulation otherwise, the payment to the Louisville & Nashville Railroad Company of the amount charged by that company as stated in the contract, ils collection from plaintiff, and the charge of the reduced rate when live-stock is carried at the owner’s risk, make & prima facie showing of ratification and transportation under the terms and conditions of the contract, and entitle the defendant to the benefit of its exemptions. The court should not have instructed the jury, as matter of law, that the contract was restricted to the transportation from Columbia to Montgomery, and did not enure to the protection of defendant.
A shipper may not be bound by a bill of lading, varying the terms of a verbal contract under which animals are received for transportation, when delivered to him after they are on the way to their destination, so that he is in no position to object and reclaim them. But such is not the present case. It is not pretended that there was any verbal agreement, and though, according to the testimonv of plaintiff, the car in which the mules
Consideration of other questions involved will proceed upon the assumption, for the purposes of this opinion, that defendant ratified the contract made with the Louisville & Nashville Railroad Company, and acted upon it in transporting the mules.
Ordinarily, the rule as to the burden of proof is thus stated, in general terms: The onus is primarily on the defendant to show that the injury did not result from negligence on its part, and the cause thereof was in the terms of the exception. The rule, however, should not be rigidly applied. That injury was not caused by neglect on the part of the carrier, and that it was within the terms of the exception, are relative propositions. The rule, accurately and reasonably interpreted, does not mean that the carrier must establish both of these propositions, independently of each other. When the carrier makes aprima facie showing, that the injury occurred without negligence on his part, this prima facie brings its cause within the
The contract of shipment recites, that plaintiff examined the car provided for the transportation of the mules by the Louisville & Nashville Railroad Company, and found it in good order and condition, and accepted it as sufficient and suitable for the purpose. They were taken to Opelika in the same car. The special contract changes the character of the employment, so far as to exempt the carrier from the liability of an insurer, but responsibility for the carrier’s own misconduct or neglect remains. Failure to furnish a safe and suitable car is itself negligence. We are unwilling to adopt the rule laid down in some of the cases, that the carrier may, by contract, impose upon the shipper the obligation and duty of absolutely determining that the car provided is safe, suitable and sufficient for the transportation of live-stock. This virtually allows the carrier to contract for exemption from responsibility for his own negligence.—Welsh v. Pittsburg, Ft. W. & Ch. R. R. Co., 10 Ohio St. 65. The statements in the contract, as to the character and condition of the car, are admissions that it was suitable and sufficient, and place upon plaintiff the burden of .showing that it was unsafe and unsuitable; but do not estop him from recovering for an injury caused by a defect in the car. The admissions prima faeie show that defendant performed its duty in this regard.
The defendant requested the court to charge the jury: “If the defendant has shown by the evidence that the car in which, the mule was carried was a suitable one, and that the track was in good order, that the equipment and appliances of the track were adequate, that there was no fault or negligence on the part of the carrier in handling the stock, or in running the train, or in the arrangement thereof; then the fact, if it be a fact, that the evidence fails to show how the injury complained of occurred, is not sufficient to fix the liability on defendant; but such proof would shift the burden upon the plaintiff to show that the injury complained of was the result of some act of defendant, and if the plaintiff has failed to show this to the satisfaction of the jury, their verdict should be for defendant.” If the facts hypothetically stated in the charge, be proved to the satisfaction of the jury, they overcome
The contract also contains a stipulation, that as a condition precedent to plaintiff’s right of recovery, he.must give written notice of his claim to the agent of the carrier from whom he-receives the animals, before they are removed from the place-of destination or of delivery, and before they are mingled with other animals. Such a stipulation has been generally held to-be reasonable, especially when the owner or his agent accompanies the stock, or agrees to do so, and to care for them. Goggin v. Han. Pac. Railway Co., 12 Kan. 416; Dunn v. H. & St. J. R. R. Co., 68 Mo. 268. But such conditions should not be strictly construed. The object is to prevent fraud on the carrier. When the shipper does not discover, and by ordinary diligence could not have discovered the injury and its extent, before the animals are removed, notice thereof within such reasonably short time after their removal as effectually secures the carrier from fraud, is a substantial and sufficient compliance with the condition. In Demsby v. W. P. Railway Co., 2 McCrary, 48, it was ruled, that such clause in the agreement is of no effect as to an illness occurring to animals, the extent of which could not have been known until after their removal from the car, and probably not for some little time after their arrival. The mules were delivered to plaintiff on the 29th day of December, and removed to his lot, ydiere the injury was discovered soon afterwards; and notice of the claim ■was given to the agent of defendant on the 4th day of January following. Whether plaintiff could, by ordinary diligence, have discovered the injury and the extent before removing the mules, and whether the notice of the claim was given within a reasonable time thereafter, are questions for the jury.
The contract contains the further stipulation, that if damage occur for which the carrier is liable, the value at the date and place of shipment shall govern the settlement, but the amount
In view of the principle we have stated, that, under the circumstances of this case, the onus is on plaintiff to show a defect in the car, whether the charges requested by plaintiff are not abstract and calculated to mislead, admits of doubt. The propriety of a charge, which particularizes the fact, that there was a nail or other iron projection in the car that would likely cause the injury, of which there is no evidence, other than the opinion of witness that the wound was produced by the head coming in contact with a piece of iron, is at least questionable. But, as the charge asserts a correct proposition of law, if there be any evidence, however slight, tending to support the hypothesis, we can not pronounce giving such charge to be erroneous; and if abstract or misleading, its effect should have been avoided by qualifying or explanatory charges.
By the contract, plaintiff agreed to load and unload the mules at his own risk, and. feed, water and attend them at his
The assignments of error going to the rulings on evidence, not having been urged in the argument, have imot been specially considered; neither do we deem it necessary to unduly extend this opinion by separately noticing all the charges given and refused. An application of the principles herein asserted will be sufficient for determining the relevancy and competency of the evidence, and for a correct disposition of the case.
Reversed and remanded.