Hibler v. McCartney , 31 Ala. 501 ( 1858 )

WALEEB, J.

— In the case of Sampson & Lindsay v. Gazzam, 6 Porter, 123, this court decided, that it was permissible for a steamboat ownei’, when sued for the loss of goods by fire, to show by parol that the exceptive words, “ dangers of the river,” in a bill of lading, by usage and custom included dangers by fire. That decision was made nearly twenty years ago; at the next succeeding term of the court, was approved, and its doctrine re-asserted, in the cases of Ezell v. English, 6 Porter, 311, and Ezell v. Metter, 6 Porter, 307 ; and was quoted with manifest approbation, as late as 1848, in the opinion in Knox v. Rives, Battle & Co., 14 Ala. 249. It'has never been departed from, or assailed, in any subsequent decision ; but has, for nearly twenty years, stood in our reports, an unassailed and approved exposition of the law of the «lass of contracts to wbicb it pertains. It must necessarily have entered as an element into the contracts of carriers by water in this State, controlling the terms of the clause designed to except from the stringent rule of responsibility prescribed by the common law. We must presume that, in so long a time, it may have become known, and passed into a rule of contract, alike with carriers by water, and their customers. To depart from such a decision, would produce the same injustice which results from retrospective legislation. It would, in effect, say to the persons affected by it, Although you had the assurance of a decision of the highest judicial tribunal of the State, standing undisputed for nearly twenty years, and afterwards twice approved, of the law applicable to your contract; and although, when you made your contract, you and the other contracting party arranged the stipulations in reference to that decision; yet yojir rights and your liabilities shall be settled according .to a different view of the law. For these reasons, we decline to consider and pass upon the arguments and authorities which have been adduced for the purpose of showing the incorrectness of the above stated principle ¡settled in Sampson & Lindsay v. Gazzam. That principle must now be regarded as the settled law of the State. Maintaining that principle, we must approve the ruling of the court in the admission of the evidence objected to, and also the charge given by the court.

The first and third charges asked by the plaintiff, would have taken from the jury the consideration of the question, whether the expression, “ dangers of the river,” did not, by custom and usage, have a meaning sufficiently comprehensive to include dangers by fire; and were, on that account, properly refused.

The second charge asked was, that no custom or usage could add to, vary, or contradict the written express contract of the parties. This charge was abstract, unless it could effect the exclusion of the testimony as to the import, according to usage and custom, of the words “ dangers of the river.” The charge was not entitled to any operation on the case, and would have contributed to tbe confusion of the jury, by opening the door for their consideration of the question, whether the principle of law asserted by’the charge required an exclusion of the evidence as to the custom. There was no error in the refusal of this charge.

If the facts presented in the fifth charge asked admit of no inference opposed to the conclusion that the defendant was guilty of negligence, it should have been given. Stanley v. Nelson, 28 Ala. 515; Eldridge v. Spence, 16 Ala. 682; Nelms v. Williams, 18 Ala. 650; Bryan v. Ware, 20 Ala. 690; Williams v. Shackelford, 16 Ala. 318; Henderson v. Mabry, 13 Ala. 713.

This charge suggests the question, whether or not the holding of a torch by a carrier, in such manner as to expose uncovered, ragged cotton to the sparks from it, and thus to ignite it, is negligence. Does this conduct involve the omission of that caution and care, which a prudent man would exercise about his own business? This is the test of negligence; and when this test is applied, the conclusion is inevitable, that the act was clearly one of negligence. No prudent man, in taking care of his own ragged and uncovered cotton, would hold a torch in such a manner that sparks would fall upon it. The facts presented in the charge admitted of no other inference than that which the court was asked to draw ; and it was, therefore, the duty of the -court to give it.

This result would not be changed by the existence of a custom of carrying torches at night. A custom, which would authorize a carrier to carry a torch, in such a manner as to endanger the cargo, would be violative of law and good faith, and could not receive judicial sanction. Barlow v. Lambert, 28 Ala. 704. If a boat cannot be run at night, without the aid of torches, carried in such a manner as to endanger the cotton on freight, to stop is the plain duty of the carrier. Custom cannot relieve from the obligation to bestow, even in guarding against the excepted danger from fire, reasonable care and diligence in taking care of the freight. The law cannot justify a postponement of the safety of the cargo, to the desire of a speedy passage to the point of destination.

We do not inquire whether the fourth ■ charge -asked should have been given, as the fifth will cover the entire ■case so far as the question of negligence is concerned.

The judgment of the court below is reversed, and the cause remanded.