Richmond & Danville R. R. v. Trousdale & Sons , 99 Ala. 389 ( 1892 )

McCLELLAN, J.

This action is prosecuted by Trousdale & Sons, a domestic corporation, against the Bichmond & Danville Bailroad Company, a foreign corporation. It sounds in damages for the breach of a contract of affreightment, whereby the defendant undertook to promptly and safely transport certain live stock from Birmingham, Alabama, to Atlanta, Georgia, and there deliver them to tire plaintiff which was both consignor and consignee. The contract was made in Birmingham, Alabama, where the plaintiff was domiciled and where the defendant was present by its agents, and whence it operated a line of railway to Atlanta, Georgia, great part of which was in Alabama, and over which the transportation was to be effected. This was, therefore, an Alabama contract, not only made here, but in part to be performed here ; and the courts of this State clearly, we think, have jurisdiction, service being had, of this action for its breach, notwithstanding the defendant is a foreign corporation, and its full discharge was to be consummated by delivery to the consignee in another State. See Central Railroad & Banking Company of Georgia v. Carr, 76 Ala. 388, s. c. 52 Am. Rep. 339.

The evidence tended to show that the animals when delivered in Atlanta, from thirty-four to thirty-six hours after they should have been delivered — a reasonable time for transportation and delivery being put at from ten to twelve hours, and the time required in this instance at forty-six hours — “had been down and were skinned up,” that they “looked very thin, hollow, skinned and scalded from standing in the car,” “seemed to be feverish,” “one lame in hind legs and limping,” one specially valuable horse “was sore and lame and appeared to have no life,” twelve others “all sore and lame and skinned,” &c., &c.; that all the stock were in excellent condition when shipped from Birmingham, and that the bad condition in which they were on arrival at Atlanta was due to the fact that they were kept on the cars a very much longer time than was necessary-for their transportation and delivery, without water orfood. On the other hand there was evidence tending to show that the animals, Or some of them, were not in a sound condition when they were received for shipment, and that the diseases and hurts they exhibited on delivery in Atlanta existed, or had been sustained, before they were shipped and did not result from their transportation at all. It is insisted that the trial court assumed or declared the falsity of the evidence' last referred to, or that in effect it was withdrawn from the consideration of the jury by the instructions given. We think not. The charges supposed to have this infirmity are as follows: “If the defendant, having undertaken to deliver the stock, failed to deliver it in a safe condition, within a reasonable time, the presumption of negligence arises, and the burden of proof is shifted to the defendant, to excuse itself from negligence and again : “If the jury believe from the evidence that the plaintiff is entitled to recover, the measure of the damage is the difference in the market value of the stock in Atlanta, Ga., if they had been delivered without any delay in shipment or delivery, and their market value after their delivery in Atlanta, Ga., in the condition the evidence shows they were in.” The first charge quoted we understand to mean only this: that if there has been unreasonable delay on the part of the defendant in the transportation and delivery of the live stock and when, after such unreasonable delay, they are found to be in an unsound condition, the onus is then on the defendant to show that the unsound condition of the stock was not due to the unreasonable delay in transportation; or, in other words, that evidence of unreasonable delay and the existence of injuries on delivery raises a prima facie presumption that the delay was negligent and the injuries resulted from it, and puts it on the defendant to rebut this presumption, and show either that there was no negligent delay, (which was not attempted to be shown in this case) or, conceding the delay, that the injuries did flot result from it, but (as was attempted to be done in this case) that the stock was in an unsound condition — had received the injuries complained of- — before the shipment. This wre understand to be the law, especially where, as in this case, the contract of affreightment sets forth that the stock when received was “in outward apparent good order,” and the injuries counted on and shown in the testimony were “outward and apparent.” This charge does not assume that the defendant has not discharged this burden, nor does it take away from the jury, or tend to mislead them to forego, the right to find on the whole evidence that the stock was unsound when it came to the hands of the carrier. And so with the other charge quoted which was given at the request of the plaintiff. It does not as-, sume that the stock was injured in the transportation, but asserts only that, if the jury should find negligent delay— as to which there was no controversy — in the transportation and delivery, the measure of plaintiff’s recovery would be the difference in value of the animals at +-he time they should have been delivered in the condition they would have been at that time, and their value when they were delivered in the condition they were at that time. This did not tend to prevent the jury to find that their injuries were not caused by the delay but existed before the carriage began, and hence that their condition was the same when they were delivered ’ as when they should have been delivered. The instruction in effect was that, if the jury found any damages at all for plaintiff, it should be measured by the change in the condition of the live stock wrought by the unreasonable delay, if such change had been wrought.

It may lie true that railroad transportation of live stock always and inevitably involves reduction in their weight, some lameness and even abnormal weakness ; but that this is true and that these effects, incident to the nature of the subject-matter and the manner of transportation, can not be made the basis of a recovery in damages where there has been no negligence on the part of the carrier contributing .thereto or aggravating the natural injuries resulting from car wear and necessary deprivation of water and food, is not to say that, where the carrier has been guilty of neglidelay and subjected the stock to the injurious effects of such transportation for an unreasonable and unnecessary length of time, and in consequence thereof the stock has been injured, though only in this natural way, to a greater extent than would have been the case had the delay not occurred, the carrier would not be responsible for whatever increased damage the stock has sustained on account of the delay, though such damage may be purely incident to keeping the animals on the car. To the contrary, we do not doubt the liability of the carrier for all damage that is referrible to a negligent prolongation of the transportation through its natural effect upon the physical condition or latent vicious propensities of the animals, whereby they are reduced in weight or strength more than they would have been had prompt carriage and delivery been made, and injure each other in consequence of viciousness, aroused by the excess of their confinement beyond the time necessary for transportation and delivery. These views will suffice to show the grounds of our opinion, that the trial court did not err in its .rulings on charges having reference to this part of the case. The charges asked by the defendant were faulty in that they involved a tendency to mislead the jury, if indeed that was not their direct effect, from a consideration of any injuries which resulted to the stock from their nature, habits and propensities in connection with and as operated upon by the negligent delay of the carrier. Charge 6 given for plaintiff correctly asserted the law in this connection. Charges 1, 12 and 1 refused to defendant were open to the objection pointed out above, if not to others also.

Charge 16 asked by defendant is in a sense abstract— there was no evidence that plaintiff was remiss in its efforts to repair the injuries sustained by the stock, if any, or that such injuries might have been lessened or cured by proper attention which was not given — and was affimativeíy bad in that it limits the recovery to nominal damages, though, for aught that is hypothesized, the plaintiff might well have been put to great trouble and expense in repairing the injury which his property had sustained through defendant’s negligence,

Charge 6 above referred to is not open to the objection urged in argument which proceeds on the idea that there was evidence that twenty-hours, or any number beyond ten or twelve, would be a reasonable time for the transportation from Birmingham to Atlanta. A witness for plaintiff testified that “usually stock in shipping go through very nicely in ten, fifteen or twenty hours,” but this evidence went to show that stock would not be injured on a journey lasting from ten to twenty hours on cars, and not that it was reasonably necessary for any length of time beyond ten or twelve hours to be consumed in the transportation from Birmingham to Atlanta.

We cannot see that the court committed any error in sustaining plaintiff’s objection to the question put by defendant to the witness Camp. The form of the question was enough to support the objection, and besides the fact sought to be elicited was not relevant. If there was a custom for shippers of stock to accompany it, non constat but that this was a mere privilege and not a duty of the shipper; and if the duty of the shipper in this instance, it does not appear that its performance would have avoided the injury, or that its remission contributed thereto.

The other exceptions'to rulings on testimony are not urged in argument.

The judgment of the Circuit Court is affirmed.