South & North Ala. Railroad v. Wood , 66 Ala. 167 ( 1880 )

SOMEB.YILLE, J,

This is an action brought by the appellee against the South and North Alabama Railroad Company, for the failure to deliver a'car-load of corn, received by the said company for transportation b] it as a common earrier. There is no count in the complaint, seeking to charge the company on the ground of negligence in the custody of the goods, in its capacity as a warehouseman..

As a general rule, the undertaking of a common carrier, to transport goods to a particular destination, includes the obligation of a safe delivery of them to the consignee, or his authorized agent. And the contract of carriage is one of insurance against every loss or damage, except such as may be occasioned by the act of God, or the public enemy.—Angell on Carriers, § 282; Fitchburg, etc., R. R. Co. v. Hanna, 6 Gray, 539; Heineman v. Grand Trunk Railway Co., 31 How. (N. Y.) 430.

In the case of railroad companies, universal custom seems to have settled it, as being the more reasonable rule, that a personal delivery to the owner, or consignee, is not required. Their routes are, in a measure, permanently fixed, and can not be easily varied to suit the convenience or accommodation of the public. Their cars and locomotives run on certain lines, or tracks, from which they can not deviate ; and it is, therefore, implied that they shall deliver, either at the ter-; mination of their routes, or at fixed intermediate stations. Hutchinson on Carriers, § 367. And, although the authorities are greatly conflicting on the question of notice, there seems to be a preponderance of the decisions favoring the proposition, that no obligation rests on railway carriers to ■.give special notice of the arrival of goods to the person to whom they are consigned. This is not in accordance with the ancient rule governing common carriers generally ; and its •establishment seems to furnish a fresh illustration of that wonderful and plastic power of the whole system of the common law, to mould itself to the rapid growth of modern commerce, and the new phases of an advancing civilization.

It is not unreasonable, in such cases, to assume that the •consignee has been already advised by the consignor, of the fact that the goods have been forwarded to him. It would, ■too, be practically impossible to require such notice to each ■consignee/ where the arrivals of goods by this mode of transportation are so frequent and various, as is the case in populous emporiums of commerce and the great centres of railway traffic. — Eedfield on Oar. § 110 : Hutchinson on Oar. .§§ 367-68.

These principles apply where the carrier has an agent or depof at the point of destination. The rule governing the liability of railroad companies, in such cases, whether as common carriers or as warehousemen, is properly stated by this court in the case of Ala. & Tenn. Rivers Railroad Co. v. Kidd, 35 Ala. 209; and it is unnecessary for us here to reiterate it.

In the present ease, as shown by the evidence, it was distinctly understood, at the time of the shipment of the corn in controversy, that the South and North Ala. Railroad Company had no agent at “ Jemison Station,” which was a mere “flag station,” to which the car-load of corn was consigned. It was equally well made known, that there was neither agent nor station at “ Smith’s Mills,” where it was agreed that the corn might be delivered. The question presented for our decision is, Did the safe delivery of the car, containing the corn, on the side-track at a station where it was agreed to be received, terminate the liability of the railroad company as a common carrier?

The law does not require of railroad companies the absolute duty to construct or keep warehouses at every station along their route of travel or transportation. They are required only to do the best their means will enable them to do, under existing circumstances, and Must act in accordance with the reasonable necessities of their usual business. — Red. on Car. § 120. We can see no reason why a railway company, acting as a common carrier, cannot stipulate, by a contract express or implied, that their liability as a- carrier shall terminate with a delivery at a particular point, and that they will assume no liability at all, in such case, as warehouse-men.

If the consignee is fully advised, at the time of shipment; that the company has no agent at the particular station or place to which the consignment is made, and the failure to employ such agent is not shown to be unreasonable in view of the condition of the company’s business, there is, in the absence of rebutting circumstances, an implied consent that the carrier’s responsibility shall be dissolved, when he has done all that the nature of the case permits him to do, according to the reasonable and proper usages of his business.

The delivery of the 'car-load of corn on the side-track at “ Smith’s Mills ” terminated the liability of appellant; It would be unreasonable to require the railroad company to employ a special agent to keep the corn in further custody, unless there was an agreement, express or implied, to do so. When the consignee was informed that there was no agent of the company there, he was virtually told that there would be no custody of the goods by the carrier after arrival. The shipment, after such knowledge, was an assent, on the part of the shipper, to the implied conditions.—Wells v. Wilmington, etc., R. R. Co., 6 Jones (N. C.) 47.

The case of the Southern Express Co. v. Armistead, 50 Ala. 350, is not in conflict with these views. That was a delivery by an express company, which is, ordinarily ,required to be a personal delivery. Such companies may, in fact, be justly said “to owe their origin to the modification of the law’in regard to the delivery of goods in favor of water carriers and railway companies.” — Hutch, on Car. § 379. That decision was, furthermore, based on the ground, that the evidence failed to show any contract, express or implied, waiving a personal delivery.

Eor the reasons above given, the second charge given by the Circuit Court was clearly erroneous.

The first charge requested by appellant was properly refused. It was vicious, in assuming that the liability of the railway company depended on its negligence, or that of its agents. Being a common carrier, the road, in the absence of a special contract limiting its common-law liability, was an insurer against every loss or damage, except that occasioned by the act of God, or the public enemy. It is obnoxious to the further objection, that it fails to recognize the duty of exculpation, which is always cast on common carriers, where a damage or injury is shown in the case of goods delivered to them for carriage. In such cases, the general rule is, that the onus of proof is always on the carrier, to show that his liability terminated before the loss or damage in question occurred.—Redfield on Car. § 113; Wardlaw v. South Car. Railway, 11 Rich. Law, 337.

The question to the witness Copeland, and his answer, were relevant, and properly admitted. The evidence thus elicited tended to show the amount of corn delivered to appellant for transportation. The experiment of measuring out some of the same corn, with the same barrel originally used, was proper, to test the capacity of the vessel used, and the consequent accuracy of the first measurement.

Be versed and remanded.