Louisville & Nashville Railroad v. Cowherd , 120 Ala. 51 ( 1897 )

BRICKELL, C. J.

Appellee sued to recover damages for the loss by fire in appellant’s depot at Gadsden, of certain household goods which had been received by appellant at Lebanon, Ky., for transportation to Gadsden. The first count of the complaint charges defendant as a common carrier, and the second as a warehouseman. In consideration of reduced rates appellee had entered into a special contract whereby appellant was released from all liability for damages arising from fire and other specified causes, “not the result of the carelessness or. negligence of the agents or employee's of the company.” The goods were delivered to appellant at Lebanon on June 27, 1895, consigned to appellee -at Gadsden, and were destroyed by fire in appellant’s depot at Gadsden about 3 o’clock on the morning of July 7th. Plaintiff’s evidence tended to show that Gadsden was a town of more than 2,000 inhabitants, having a daily mail, and that he received no notice of any kind of the arrival of the goods at Gadsden, although he, or some one for him authorized to receive his mail, had called at the post-office daily for his mail for several days previously to the fire ; and that he did not know what length of time would be required to transport the goods from Lebanon to Gadsden. Defendant’s testimony tends to show that on July 3, 1895, there was deposited in the post-office at Gadsden a postal card dated July 2, 1895,’ directed to B. S. Cowherd, instead of-to B. T. Cowherd, notifying him of the arrival of the goods, and the postal card was put in evidence by the defendant; that the depot was constructed of the same material and on the same general plan as the depots of other well regulated railroads in towns of like size, and was properly located ; that at 6 o’clock the evening preceding the fire, there was no fire in the depot, and no combustibles or explosives of any kind, and that all the doors and windows we're tightly fastened ; that a competent white watchman was employed to watch the depot at night, whose duties also required him to watch a bridge 200 or 300 feet from the depot and 900 feet in length, across which he was required to make occasional trips; that .when the depot agent arrived at the depot about 3 o’clock, he found the watchman there, and the building was filled with smoke, but the flames had not yet .developed inside ; that an empty box car, standing on a side track near the building, the door of which was open, was burning-; and that the agent, watchman, citizens, and the Gadsden fire company made diligent efforts to extinguish the fire and save the goods in the depot, but failed. This, in addition to' the special' contract and the bill of lading, is the substance of all the evidence.

At the request of the- defendant, the trial court gave the general charge in favor of defendant on the second count, which sought to charge defendant as a warehouseman. All consideration of defendant’s liability in this respect was thereby eliminated, and the .only issue presented to the jury was that of defendant’s liability as a common carrier. It was not error, therefore, to refuse to give charges 5 and 7, requested by defendant, which relate to its liability as a warehouseman. They were also properly refused because they do not hypothesize any facts in evidence, there being no testimony tending to show that the goods arrived at Gadsden on July 2d, the evidence showing only that the postal card written to notify plaintiff of the goods, was dated on that day ; or that .plaintiff knew his goods were in the depot two days before the fire, or knew about the time it would take for the goods to arrive at Gadsden.. Moreover, it was not the duty of plaintiff to inquire at the depot for the goods, the failure to do which would release defendant from all liability as a common carrier; the evidence showing without conflict that Gadsden was a town of more than two thousand inhabitants, having a daily mail. In such cases the carrier is not relieved from liability as a common carrier “unless, within twenty-four houi*s after, the arrival of such freight, notice thereof is given the consignee, personally or through the mail.”—Code of 1886, § 1180. Charge 6, also, was for this reason properly refused.

By the common law a common carrier becomes absolutely liable for the safety of goods intrusted to him for transportation, and responsible for any loss of or injury to the goods, not caused by the act of God, or of the public enemy, or by the fault of the party complaining-; and when loss or injury happens a, prima facie presumption of negligence arises, and the burden is on the carrier to exempt himself from liability. By special contract, however, this common law liability may be limited, but not to the extent of excepting the carrier from responsibility for loss or damage caused by his own negligence. In an action against the carrier as such to recover damages for'the loss of goods, a prima facie case is made out by proof that the carrier received the goods for transportation and failed to deliver them safely; and if the carrier claims exemption from liability under a special contract, he must show to the reasonable satisfaction of the jury not only that the cause of loss was within the limitation of the contract, but also that the loss and the cause of loss were without negligence on his part.—Steel & Burgess v. Townsend, 37 Ala. 247; S. & N. R. R. Co. v. Henlein, 52 Ala. 612; L. & N. R. R. Co. v. Oden, 80 Ala. 43. The trial court properly charged on the question of the burden of proof.

Since the amendment to section 2756, Code, 1886, (Acts 1888-89, p. 90), providing that charges which have been refused must be retained by the clerk, and shall not be taken by the jury on retirement, it is not error for the trial court to refuse to give charges which are mere repetitions of charges already given, or contain substantially the same language without asserting different principles. Such charges not being seen by the jury, their refusal cannot prejudice the party requesting them, if the substance of the charges has been j)reviously given.—L. & N. R. R. Co. v. Hurt, 101 Ala. 49; K. C. M. & B. R. R. Co. v. Burton, 97 Ala. 260. If defendant’s refused charges 1 and 10 were not the same in substance, and did not assert substantially the same principles, as the given charges 8 and 10, then they incorrectly stated the legal effect of the special contract of of shipment in ignoring the effect of -defendant’s negligence as the cause of the loss, and were misleading, and for this reason properly refused. Charge. 8, requested by defendant and refused, is subject, in part, to the last mentioned criticism. Charges 8 and 13 do not properly hypothesize the facts in evidence. There is no evidence in the record tending to show that there 'was “no fire put in or left in said depot by defendant” at any time before the fire occurred. The testimony was that “when defendant’s depot agent left the depot about 6 o’clock on the afternoon next before the fire [nine hours before the fire occurred], there was no fire in said depot.” The charges were properly refused also because the truth of all the facts hypothesized therein would not conclusively show want of negligence on the part of defendant, and, therefore, would not authorize the court to direct a verdict in favor of defendant. The charges given at the request of the plaintiff were properly given.

We find no. error in the record and the judgment must be affirmed.

Affirmed.