Collins v. Alabama Great Southern Railroad , 104 Ala. 390 ( 1893 )

HARALSON, J.

1. The first assignment of error is that the court below erred in overruling plaintiff’s demurrer to defendant’s 4th plea ; but, the record fails to disclose what that demurrer was, and we can not, therefore, consider this assignment.

2. According to the decisions of this court, without reference to any statute on the subject, the liability pf a railroad company as a common carrier of goods transported over its line, does not cease on the arrival of the goods- at their destination, and their deposit there in a warehouse, but continues until the lapse of a reasonable time for the removal of the goods by the consignee, and its liability as a warehouseman does not begin until its liability as a common carrier has ceased. — Columbus & W. R. R. Co. v. Ludden & Bates, 89 Ala. 613; Anniston & A. R. R. Co. v. Ledbetter & Farmer, 92 Ala. 326. 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.— S. & N. Ala. Railroad Co. v. Wood, 66 Ala. 167.

The decisions of this court, however, in the case of railroads have established the rule to be, that when a railroad company receives goods for transportation, safely carries them to their destination, informs the consignee of their arrival, and affords him reasonable opportunity to remove them, its duty and obligationvas a common carrier are at an end; and if the goods are left in its custody, its liability, for a subsequent loss or damage is that of a warehouseman only. In that relation, it is bound only to common care and diligence. — Kennedy v. Mobile & G. R. R. Co., 74 Ala. 430 ; Mobile & G. R. R. Co. v. Prewitt, 46 Ala. 63; Ala. & Tenn. R. R. R. Co.v. Kidd, 35 Ala. 209; Hutchinson on Carriers, § 350.

3. By section 1180 of the Code, it is provided, that if the place of destination of freight is a city or town having 2,000 inhabitants, or more, and a daily mail, the carrier is not relieved of the responsibility of a common' carrier by reason of a deposit or storage of freight in a depot or warehouse, unless, within twenty-four hours after the arrival of such freight, notice thereof is given to the consignee personally or through the mail. This statute applies to all carriers, including railroads, and prescribes the notice to be given, and how it may be given, necessary to relieve them of the responsibility, in the cities and towns specified. In such places, if notice thereof, either personal or by mail is given, within 24 hours after the arrival of the goods transported, the liability of a common carrier ceases, when the goods are thereafter placed in a depot or warehouse, and that óf a warehouseman begins, on such a deposit.

4. In this case, the proof shows, without conflict, that Stollenwerck & Co., within 24 hours after the arrival of the bale of goods shipped to them, received notice by mail from defendant of their arrival. In order to show that T. H. Spencer — the party designated to receive the notice of the arrival of the other bales of goods — was duly notified of their arrival, the defendant company sought to prove, against the objection of plaintiff, that within 24 hours after their arrival, it gave said Spencer such notice by the means of a postal card, containing such notification, addressed and mailed to him at Birmingham. The precise objection to this evidence did not relate to the fact or the time of the mailing, but that “the postal card itself was the best evidence.” The objection was not well taken. The postal card was itself a notice, given as directed by the statute, and like a notice to quit, or notice of the dishonor of a bill of exchange, notice to produce it was not necessary. Mailing the notice, was what the statute required, and the fact necessary to be proved. — 1 Greenl. Ev., § 561, 1 Whart. on Ev. ,162; Watson v. The State, 63 Ala. 21.

5. It is objected in this connection, that Stollenwerck & Co. and Spencer were not proper parties to receive this notice. The consignor lived in New York, and the goods having been consigned to himself, with directions on the bills of lading, given by him, that notice of their arrival at Birmingham should be given to these persons, thus designated, he constituted them, thereby, his agents to be notified of the arrival of the goods, and to receive them from the defendant. They were virtually the consignees, and the deliyery of the goods might have been lawfully made to them. Spencer testified that he was a broker, and sold goods for plaintiff on commission, and that these goods were sent to him as a broker to be disposed of for plaintiff on commission. — Pepper v. George, 51 Ala. 190; Reid v. Bank of Mobile, 70 Ala. 211.

After the arrival of the goods, and notices of their arrival had been given to the parties thus designated to receive such notices, and to receive the goods themselves, they remained in the warehouse of defendant — one bale of them from the 15th, and the other from the 24th of July — until the night of the 30th of that month, when they were destroyed by fire caused by an explosion of gun powder, stored in the warehouse. This was more than reasonable time within which to remove them.— C. & W. Railway Co. v. Ludden & Bates, 89 Ala. 613. The goods, therefore, were held by che defendant, at the time of their destruction, as a warehouseman, with the liabilities as such only; its responsibilities as a common carrier having terminated.

6. We will not review the evidence tending to show the care and diligence exercised by the defendant, both in the structure of its warehouse, the materials out of which it was built, and the. manner in which the same was guarded and kept to prevent accidents and to preserve the property stored from loss and destruction. These will set out in the report of the cause. It is sufficient to say, that the defendant appears to have exercised all reasonable and proper care to preserve the property, and that the accident by which it was destroyed arose from no negligence on its part.

The fact that the defendant had in its warehouse at the time 1,200 lbs. of powder, is not, of itself, such evidence of negligence as entitles the plaintiff to recover. While it may be said that the keeping of large quantities of explosive material in a building in a populous town or city may be a nuisance, yet, the fact whether it is such or not, must depend on the locality, quantity of the material stored and the circumstances. Negligence in keeping it, or in the manner of its keeping, is requisite to impose a liability to answer in damages for injuries caused by an accidental explosion or fire, which ic is incumbent on the party affirming to prove. — Cook & Co. v. Anderson, 85 Ala. 105 ; Wood on Nuisances, § 140. The defendant was a common carrier of such and all other commercial materials. It is not shown that there was any city ordinance against storing the powder in its depot, for the purpose of delivering it to its consignee. It arrived on the 29th,' the day before the explosion, and the consignee was duly notified on the morning of the 30th of July, the day of the explosion, of its arrival; and, instead of being negligent, the evidence shows the defendant was very careful to preserve it against accident in a house built of iron and covered with tin and carefully guarded. There was no evidence to show how the explosion occurred, further than that there were some suspicious facts tending to show that one Ellis, an employé of the defendant, who was behind in his accounts, may have set fire to the building, for the purpose of hiding his default. But there was no evidence tending to show, if Ellis did set fire to it, that it was a negligent act of his done while in the performance of his duty. If he did it at all, it was his own tortious, wicked act, done outside the line of his employment, in which the defendant did not participate, or afterwards in any manner ratify, and for which it is not, in any wise, responsible. It is well set-tied, that if an agent go beyond the range of his employment or duties, and of his own will do an unlawful act, injurious to another, he, and not his employer, is liable. Gilliam v. S & N. Ala. R. R. Co., 70 Ala. 268; Lilley v. Fletcher, 81 Ala. 234.

It is unnecessary to notice the other errors assigned, as to the introduction of evidence.

There was no error in giving the general charge in favor of defendant.

Affirmed.