96 So. 266 (Ala. 1923), 8 Div. 558, Tennessee River Nav. Co. v. Walls

Docket Nº8 Div. 558.
Citation96 So. 266, 209 Ala. 320
Opinion JudgeTHOMAS, J.
Party NameTENNESSEE RIVER NAV. CO. v. WALLS.
AttorneyStreet & Bradford, of Guntersville, for appellant. John A. Lusk & Son, of Guntersville, for appellee.
Judge PanelANDERSON, C.J., and McCLELLAN and SOMERVILLE, JJ., concur.
Case DateApril 26, 1923
CourtSupreme Court of Alabama

Page 266

96 So. 266 (Ala. 1923)

209 Ala. 320

TENNESSEE RIVER NAV. CO.

v.

WALLS.

8 Div. 558.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action for damages for failure to transport cross-ties by Seaborn J. Walls against the Tennessee River Navigation Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

Requested instruction that there could be no recovery by plaintiff, who claimed defendant discriminated against him by carrying freight placed on the river after plaintiff's ties were placed on the river, held properly refused as misleading.

Page 267

See, also, Tenn. River Nav. Co. v. Walls, 18 Ala. App. 305, 92 So. 202.

The following charges were refused to defendant:

(1) The court charges the jury that, if the defendant utilized the transportation facilities reasonably obtainable for the transportation of freight, and if such facilities were fully occupied at nearly all times with carrying freight of a more perishable nature than cross-ties, and if the defendant transported plaintiff's ties whenever it could reasonably procure facilities for doing so, then your verdict should be for the defendant.

(10) In the absence of an agreement to the contrary, a steamboat corporation engaged in the business of carrying freight for the public for hire on Tennessee river between Decatur and Chattanooga may, if it elects to do so, devote its entire facilities to the carrying of freight of a more perishable nature, when reasonably required for that purpose, to the entire exclusion of freight of a less perishable nature.

(25) The court charges the jury that there can be no recovery by the plaintiff in this case on the claim that the defendant discriminated against him by carrying freight which was placed on the river after plaintiff's ties were placed on the river.

(26) The court charges the jury that there is no evidence that plaintiff's ties were entitled to priority of transportation over the freight that the defendant did carry.

(9) If defendant's steamboats and barges, which were reasonably available for the traffic between Chattanooga and Decatur, when leaving Chattanooga for Decatur, became loaded to capacity with freight before reaching plaintiff's ties, and if they continued so loaded until they had passed beyond his ties and had reached Gunter's landing with freights destined for points below plaintiff's ties, and if on their return trips from Decatur they became loaded to capacity before reaching plaintiff's ties with freight destined for points on said river above plaintiff's ties, then defendant was under no duty to take on board and transport said ties in the absence of special agreement to the contrary, and if this was true each time that defendant failed to carry plaintiff's ties, your verdict should be for the defendant.

(12) If a steamboat corporation engaged in the business of carrying freight for the public for hire on Tennessee river between Decatur and Chattanooga does not agree specially to carry all freight that may be offered it for transportation or does not hold itself out to the public as ready and willing to carry all freight that may be offered it for transportation, it is not under duty to carry all that may be offered it, but in such case it is under duty to carry so much freight only as it reasonably can carry with the facilities it possesses or controls, and if in such case its said facilities prove insufficient to carry all the freight that is offered it for transportation, it is under no duty to increase its facilities beyond what it voluntarily chooses to provide. And in such case such steamboat corporation is not required to distribute its service proportionately to all points along its route, but may load up its boat or

Page 268

barge to its capacity with the freights first reached by it on any trip and may decline other freights on its route after securing its capacity load so long as it has its capacity load on board.

(19) If plaintiff understood that a flood was coming which might wash away his ties, or if he should have understood this by reasonable exercise of his wits in the light of his knowledge and common experience, then the burden of proof is on the plaintiff to prove that he exercised reasonable diligence to prevent his ties being washed away, and, if he has not proved this to your reasonable satisfaction, your verdict should be for the defendant.

During the trial plaintiff testified that on one occasion he had a conversation with S. C. Whitaker in defendant's office in Chattanooga, when one Wilkey and one McKee were present. He was asked to give the conversation had with Whitaker alone. Defendant objected on the ground that both Wilkey and McKee were dead. The objection was overruled.

Street & Bradford, of Guntersville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.

THOMAS, J.

The charge of the court shows the trial was had on counts 10, 11, and 12; other counts being withdrawn by plaintiff's counsel. Assignments of error challenge the action of the court in overruling demurrer to said counts. Appellant's counsel state they shall confine their "attention" to the rulings on demurrer to counts 10 and 12. This was a waiver of other assignments based on rulings as to count 11. Georgia...

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15 practice notes
  • 27 So.2d 241 (Ala. 1946), 6 Div. 423, McGuff v. State
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...v. Greene, 148 Ala. 434, 43 So. 797; Birmingham Ledger Co. v. Buchanan, 10 Ala.App. 527, 65 So. 667; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266. And it was said 'The question called for a statement of fact: The description or designation of an occurrence; whether the gun wa......
  • 145 So. 436 (Ala. 1932), 6 Div. 965, Burns v. State
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...v. State, 207 Ala. 438, 93 So. 465; Anderson v. State, 209 Ala. 36, 44, 95 So. 171, and authorities; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Hanye v. State, 211 Ala. 555, 101 So. 108; Metropolitan Life Ins. Co. v. Carter, 212 Al......
  • 102 So. 125 (Ala. 1924), 2 Div. 830, Alabama Great Southern R. Co. v. Grauer
    • United States
    • Supreme Court of Alabama
    • November 6, 1924
    ...95 So. 171; Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; T.R.N. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Mobile L. & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733; B.T.L. & P. Co. v. G......
  • 124 So. 296 (Ala. 1929), 6 Div. 468, Rose v. Magro
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...Co. v. Carter, 212 Ala. 215, 102 So. 130; Anderson v. State, 209 Ala. 44, 95 So. 171; Tennessee River Nav. Co. v. Walls, 209 Ala. 323, 96 So. 266; A. G. S. R. R. Co. v. Grauer, 212 Ala. 200, 102 So. Page 300 Standridge v. Martin, supra; Florence v. Field, 104 Ala. 471, 16 So. 538; Wolffe v.......
  • Request a trial to view additional results
15 cases
  • 27 So.2d 241 (Ala. 1946), 6 Div. 423, McGuff v. State
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...v. Greene, 148 Ala. 434, 43 So. 797; Birmingham Ledger Co. v. Buchanan, 10 Ala.App. 527, 65 So. 667; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266. And it was said 'The question called for a statement of fact: The description or designation of an occurrence; whether the gun wa......
  • 145 So. 436 (Ala. 1932), 6 Div. 965, Burns v. State
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...v. State, 207 Ala. 438, 93 So. 465; Anderson v. State, 209 Ala. 36, 44, 95 So. 171, and authorities; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Hanye v. State, 211 Ala. 555, 101 So. 108; Metropolitan Life Ins. Co. v. Carter, 212 Al......
  • 102 So. 125 (Ala. 1924), 2 Div. 830, Alabama Great Southern R. Co. v. Grauer
    • United States
    • Supreme Court of Alabama
    • November 6, 1924
    ...95 So. 171; Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; T.R.N. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Mobile L. & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733; B.T.L. & P. Co. v. G......
  • 124 So. 296 (Ala. 1929), 6 Div. 468, Rose v. Magro
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...Co. v. Carter, 212 Ala. 215, 102 So. 130; Anderson v. State, 209 Ala. 44, 95 So. 171; Tennessee River Nav. Co. v. Walls, 209 Ala. 323, 96 So. 266; A. G. S. R. R. Co. v. Grauer, 212 Ala. 200, 102 So. Page 300 Standridge v. Martin, supra; Florence v. Field, 104 Ala. 471, 16 So. 538; Wolffe v.......
  • Request a trial to view additional results

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