Yazoo & M. V. R. R. v. Nichols & Co.

83 So. 5 | Miss. | 1919

SteveNS, J.,

delivered the opinion of the court.

Appellees as plaintiffs in the trial court sued to recover the value of thirty-one bales of cotton delivered by them to appellant railway company at Alligator, Mississippi, to be transported and delivered to Grodlett & Co., Memphis, Tennessee. The record shows that W. B. and F. M. Nichols are partners in the cotton planting business and annually shipped their cotton over the lines of the defendant company, the only railroad .company doing business at Alligator. Appellees, the owners of the cotton sued for, had their cotton ginned at Parks’ gin at Alligator. On the -2d day of November, 1917, they made application for a car, and on the morning of Saturday, November 3d, the car was placed and about noon of the same day loaded with the thirty-one bales of cotton. Plaintiffs procured a bill of lading from the agent at 1:30 p. m., and thereafter considered the cotton delivered to the carrier. The. car was placed and the cotton was loaded upon a sidetrack which leaves the main line of the railroad company about sixty feet south'of the depot platform and runs in a southeastward direction along by Parks’ gin, approximately a distance of about one thousand feet. This sidetrack was originally constructed by appellant company under a written contract with Mr. J. C. Eainer, former owner of the gin. The contract is in evidence, bears date October 14, 1901, and provides, in brief, that Mr. Eainer should furnish the right of. way, and that appellant would lay and construct the track and furnish all needed material and thereafter be the owner of the track with the right to take up and remove the same, and that appellant furthermore is to have the “exclusive possession and the quiet and peaceable enjoyment thereof” as long as the agreement should be in force. It appears that this gin track and one other track, refered to in the record as the “house track,” extending alongside the freighthouse, were for many years the only tracks in the town of Alligator. Subsequently another track was constructed ¿own by the gin of one Kline.

There is evidence tending to prove that the Parks gin track and the railway company’s house along the depot furnished the facilities for handling incoming and outgoing freight, and that between fifty and seventy-five per cent, of all carload shipments were handled on the side-' track leading by Parks’ gin; that the shipping public used the gin track, and to this end a track scale was placed on this gin track. Appellees had no proprietary interest either in the gin or the sidetrack upon which their cotton in question was loaded. The evidence further tends to show that the gin platforms held most of the cotton, and that it was from the gin platforms that most of the cotton in Alligator was shipped. Parks’ gin is a public gin, and the agent of the defendant company would honor the requisition of any shipper who desired to load or unload cotton at this gin. The carload of cotton sued for was destroyed by fire about four o’clock p. m. on Sunday, the day following the issuance of the bill of lading. There is evidence that local freight train headed north passed Alligator between three and four o’clock Saturday afternoon after the signing and delivery of the bill of lading; but the evidence further tends to show that the local agent was busy in and about his duties, and for that reason did not arrange to have the car pulled out and attached to that regular train. The fire originated in the gin, but the evidence fails to show how or by whom it was started. It is fair to assume that the fire originated through no fault of either party to this .suit. It spread rapidly to the cotton platform, was communicated to the loaded car, and the car and its contents were burned. There is evidence as to the efforts made by both parties to move the car to a place of safety and avert a loss, but the view which we talie of the whole case renders it unnecessary to detail this testimony.

The uniform bill of lading was issued in this case and, amoung other provisions, contains the following paragraph: “Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall he at owner’s risk until the ears are attached to and after they are detached from trains.”

There is no dispute as to the amount or value of the cotton sued for. The circuit judge instructed the jury peremptorily to find for the plaintiff for the value of the cotton, as also the sum of ninety-one dollars and forty-four cents freight, and, from the judgment rendered in pursuance thereof, this appeal was prosecuted.

On behalf of appellant, it is contended in the main that the quoted stipulation' in the bill _ of lading is valid and binding, is supported by a valuable consideration, and provides a reasonable limitation of the carrier’s liability in the premises; that the sidetrack upon which the car' was loaded is embraced in the phrase “private or other sidings ’ ’ in section 5 of the bill of lading; that the track was a private siding within the meaning of the phrase, but, if appellant is mistaken in this, that the phrase is broad enough to cover this case.

For appellees it is contended that the quoted provision of the bill of lading has application only to those stations at which there is no regularly appointed, agent; hut, if mistaken in this, appellees contend that the sidetrack is not one contemplated by the phrase “private of other sidings,” hut in fact was a part of .the terminal facilities of appellant company at the small station of Alligator.

It affirmatively appears that the defendant maintained at Alligator a regular freight agent, and that most of the carload shipments were received from the siding in question. Whatever differences may exist as to the construction to be placed upon the quoted provision in the bill of lading, we prefer “and adopt as the more reasonable view the construction which the supreme courts of California and West Virginia have placed upon this paragraph in the uniform bill of lading. Jolly v. A., T. & S. F. Railway Co., 21 Cal. App. 368, 131 Pac. 1057; McClure v. Norfolk & W. Railway Co. (W. Va.), 98 S. E. 514. Under this view the paragraph should he construed as a whole, and the phrase “at which there is no regularly appointed agent” should be held to qualify the last clause as well as. the first clause of the provision. If there is a reasonable doubt as "to the true interpretation to he given this clause of the hill of lading, we are justified in construing the contract more strongly against the defendant. It will be observed that the paragraph is written and must be read as a whole, and that the word “property,” the first word used, is the subject of the entire paragraph; that the so-called “last clause” of the provision is separated from the first by a comma, and by proper grammatical construction this last clause, in reference to property received or delivered on private or other sidings, wharves, or landings, has application only to those places where there is no regularly appointed agent. As well stated by the supreme court of West Virginia in the McClure Case:

“The terms, ‘private or other sidings,’ in the last clause, necessarily means private „or public sidings, because all railroad sidings fall in one or the other class. ’ ’

The word “private” in contradistinguished from-“public.” It is difficult to conceive of a siding that might be termed semiprivate or quasi private. The entire provision is designed to release carriers from liability at all places where there is no regularly constituted agents until the property has been received into the actual as distinguished from the constructive possession of the carrier and when delivered out of the actual possession of the railroad .companies at such points. The first stipulation is to the effect that property taken from a station, wharf, or landing at which there is no regularly appointed agentáis at owner’s risk until loaded upon ears, regardless of whether such property is received on a main or sidetrack, and furthermore, if received at private of other sidings in carload lots, the same is at owner’s risk at all places where there is no regularly appointed agent until the ears are' attached to trains. Heavy freight, such as cotton and lumber, and indeed the greater portion of freight shipped in carloads, must he received on sidings of some nature. The wholesale business of the nation is handled from sidetracks, whether they he termed industrial switches, team tracks, or sidings. If then appellant’s contention on this appeal is the true one, interstate carriers have successfully relieved themselves of all responsibility for theft, fire, or damage to the bulk of the freight handled in carload shipments, except only when regular trains have been made up for regular movements between stations, and furthermore under such view a large per cent, of the shipping public, having no proprietary interest in .sidings and no opportunity to protect carload shipments consigned by or to them, are without protection. The quoted provision refers as much to property delivered oh “private or other sid ..jugs’’.as property’received. It is a matter of common, observation that consignees do not 'know, and cannot know, the exact time of arrival of freight consigned at a particular station or siding, and frequently have to be -notified by a local agent of the arrival and placing of the car'. If the mere placing of a consigned car on a side track exempts the carrier from further liability, then railroad companies have an easy way of. discharging their common-law duty safely to transport and deliver freight.

In the present case, the testimony shows that ap-pellees have no proprietary interest in the gin track, and therefore had no control over the car after it had been loaded and the bill of lading issued. Prima facie the issuance of a bill of lading is an acceptance of the freight, and upon, receiving the bill of lading under circumstances disclosed by the present record; the shipper would ordinarily go about liis business and leave tbe protection of tbe car to tbe carrier. But there are many instances where railroad companies in an honest effort to serve tbe public agree to receive, or take up, and to deliver freight at flag stations and at other points on tbe main line where there is no regularly appointed agent and sometimes upon sidings where there -is no agent. At such places it is reasonable for the carrier to limit its liability for property received or delivered in accordance with what we believe to be the proper construction of the bill of lading here under review. As stated by the supreme court of West Virginia:

“There is as much, if not more, danger that property not loaded into cars would be destroyed or carried away, than, there is after it has been loaded, and therefore no reason for making the distinction contended for by counsel for defendant in the application of the provision. ’ ’

Affirmed.