Southern Railway Co. v. Proctor , 3 Ala. App. 413 ( 1911 )

WALKER, P. J.

It fairly appears from the averments of count A of the complaint as amended that the shipment of cattle mentioned was for the plaintiff, that the defendant as a common carrier undertook for hire the carriage of the property for the plaintiff. In count B the consignors were described as stock commission merchants. We are of opinion that each of those counts sufficiently shows that the defendant as a common carrier assumed the duties of that relation to the plaintiff as a person interested in the goods shipped.

The averments of each of those counts as to the de- . fendant’s breach of its duty as carrier substantially followed in this respect the form- of complaint prescribed by the Code for an action against a carrier for failure to deliver property shipped within a reasonable time.— Code 1907, § 5382, form 15.

The consignor may maintain such a claim, though the goods were consigned to another, as the presumption that the consignee has title to the goods shipped is merely prima facie, and may be overcome by proof. The court was not in error in overruling the demurrer to the complaint as amended.—Louisville & Nashville R. Co. v. Allgood, 113 Ala. 163, 20 South. 986.

The appellant was in no position to complain of the admission of evidence as to the place and hours of making deliveries of cattle shipped to the consignee. By cross-interrogatories propounded to witness for the plaintiff whose testimony was taken by deposition and by direct interrogatories propounded to its own witness it sought proof on the same subject. And it may be added that the proof elicited by the question objected to was not at variance with the state of facts sought to. be established by the defendant itself.

It is a matter of common knowledge that the effects of depriving animals of food and water for an unwonted time are manifested in their appearance. It was competent for the plaintiff to show that his cattle were injured in this way in consequence of an unreasonable delay in their arrival at the place of destination. Of necessity the principal available proof in this connection was evidence as to the appearance and condition of the cattle. The plaintiff sought to elicit proof on this subject by the question propounded to several of his witnesses: “State whether or not from your observation and experience in your judgment said cattle were suffering for food and water.” This question was objected to because it called for the opinion or conclusion of the witness. Under a recognized modification of the general rule against admitting in evidence the opinions of ordinary witnesses, their conclusions as to the appearance of persons, animals, or things may be. proved as being in their nature not mere opinions, but descriptive of facts. The law recognizes that ordinary witnesses as to such matters are not to be expected to be endowed with such powers of graphic description as to be able so to portray to the jury the subject of inquiry as to enable them to reach a conclusion as to its condition without the aid of the impression made upon or the conclusion reached by the witness who saw it. The ground upon which conclusions or opinions in reference to such matters are admitted is that from the very nature of the subject in issue it cannot be stated or described in such language as to enable persons not eyewitnesses to form an accurate judgment in regard to it.—Jones on Evidence, § 360; Smith v. State, 137 Ala. 22, 34 South. 396; Birmingham Ry., L. & P. Co. v. Franscomb, 124 Ala. 621, 27 South. 508; South & North Ala. R. Co. v. McLendon, 63 Ala. 266. If at the time in question the plaintiff’s cattle were in fact suffering for the lack of food and water, and an eyewitness had been asked, not for his judgment or conclusion on the subject, but for a description of their condition so as to enable the jurors to draw their own inferences as to the fact and its cause, the probability is that, because of the inability of the witness to separate- the indications upon which his conclusions were based from the conclusions themselves, he would not have confined himself to an enumeration of appearances, but- would have attempted to convey to the jury- the impression made upon himself by some such statement as that the cattle were in need of food and water, or that they appeared to be in a famishing and starved condition. The question objected to was not calculated to elicit,,and did not in fact elicit, what the law regards as inadmissible opinion evidence.

Part of the eleventh interrogatory to the plaintiff’s witnesses was an inquiry as to the condition of the cattle when they were delivered to the consignee, and as to how long they were kept before they were in condition to be put on the market. It was proper to admit evidence on these points in connection with other evidence tending to show that the cattle had been properly fed and watered just before they were shipped, that they were then in good condition, and that ordinarily cattle transported by rail the distance from Seottsboro, Ala., to Atlanta, Ga., would be ready for the market as soon as they had been fed and watered after they had been delivered from the car. The defendant’s objection was to the question as a whole. The question as a whole was not subject to objection on either of the grounds stated. On similar considerations it must be held that the court was not in error in overruling the defendant’s objections to the twelfth interrogatory propounded to the plaintiff’s witnesses and to the answers to that interrogatory. It is enough to say that the entire question and answers were not subject to objection on either of the grounds stated.

The plaintiff claimed that in consequence of undue delay in their transportation his cattle arrived at their destination in a damaged condition, resulting from rough handling and the prolonged deprivation of food and water.' The defendant contended that it was not liable for any damage to the cattle which was attributable to lack of food and water while the shipment was delayed, and it assigns as error the refusal of several written charges which stated its position in reference to this feature of the case. This contention is based upon the stipulation in the bill of lading or shipping contract in reference to the shipper’s feeding and attending the cattle at his own expense and risk while on the car or at feeding or transfer points, etc. The claim is that the effect of that stipulation was to release the defendant from any duty to feed or water the cattle during the journey. Such effect could not be accorded to that stipulation under the facts in this case without a disregard of the peremptory requirements of the federal statute regulating the transportation of cattle, sheep, swine, and other animals.—Fed. Stat. An. Supplement 1909, p. 44 (Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. SI Comp. St. Supp. 1909, p. 1178). That statute prohibits, with exceptions not applicable to the facts of this case, the confining of such animals in cars for a period longer than 28 consecutive hours without unloading them in a humane manner into properly equipped pens for rest, water, and feeding for a period of 5 consecutive hours; and provides that the animals so unloaded shall be properly fed and watered during such rest either by the owner or person having the custody thereof, or, in case of his default in so doing, then by the carrier, at the reasonable expense of the owner or person in custody thereof, and that the carrier “shall in such case have a lien upon such animals for food, care and custody furnished, collectable at their destination in the same manner as the transportation charges are collected, and shall not be liable for any detention of such animals, when such detention is of a reasonable duration, to enable compliance with section 1 of this act; but nothing in this section shall be construed to prevent the owner or shipper of animals from furnishing food therefor, if he so desires.” . The shipment in this case was an interstate one, and was within the influence, of that statute. There was evidence to support an inference that, when the cattle arrived at their destination, they had been kept confined in the car, without food or water for more thau 28 consecutive hours. Under the statute, the carrier cannot, by any contract with the shipper, relieve itself of the prescribed duty of feeding and watering the animals, if their owner or custodian fails to do so. It cannot by contract with the shipper exempt itself from liability for its own negligence; and its failure to perform the duty imposed upon it by the statute is negligence per se. The stipulation in the bill of lading cannot be given the effect of relieving the carrier of the duty imposed upon it by the statute.—Grey’s Ex’r v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729; Nashville C. & St. L. Ry. Co. v. Heggie Bros., 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453; Chesapeake & Ohio R. Co. v. American Exchange Bank, 92 Va. 495, 23 S. E. 935, 44 L. R. A. 449; Reynolds v. Great Northern Ry. Co., 40 Wash. 163, 82 Pac. 161, 111 Am. St. Rep. 883. Each of the charges on this subject which the court refused involved the unwarranted assumption that there was no evidence tending to show that the defendant was under a duty to feed and water the cattle. The court was not in error in refusing to give either of those charges.

The court having, at the request of the defendant, instructed the jury that the defendant could not be held liable for any damages to the cattle which was attributable to a lack of proper bedding in the car, the appellant cannot sustain a claim that it did not, in the trial, have the full benefit of the stipulation on that subject in the shipping contract. Under the evidence, it was a question for the jury whether the injury to the cattle was attributable, in whole or in part, to the lack of bedding-in the car or to the negligence of the defendant of which the plaintiff complained.

In like manner the defendant had the benefit, under charges given, of the stipulations in the' shipping contract in reference to the value at the place and date of shipment governing in the event of damage occurring for which the carrier might be liable, and in reference to giving notice to the carrier of a claim to damages for loss or injury to the cattle. Besides, there was evidence tending to support the averments of the plaintiff’s replication to the defendant’s plea setting up a breach of the last mentioned stipulation, on which the defendant took issue. The evidence as to the damaged condition ■of the cattle when they were delivered at Atlanta and as to the extent of their depreciation in value in consequence of-the injuries they had sustained afforded some basis for estimating the loss so caused in their value •at the place and date of shipment. Under the proceedings and evidence in the case, the presence in the shipping contract of the stipulations mentioned did not have the effect of entitling the defendant to the general affirmative charge in its favor. .

It is insisted that the motion for a new trial should have been granted on the ground that the verdict was excessive in amount. In that respect the verdict was sustained by testimony which the defendant did not impeach or rebut. Under the familiar rules governing the review on appeal of the action of a trial court on a motion for a new trial, this court would not be justified in disturbing, on any of the grounds urged by counsel, the ruling made on such motion in this case.

Affirmed.