Alabama Midland Ry. Co. v. Darby

• Citation: 24 So. 713,119 Ala. 531
• Parties: ALABAMA MIDLAND RY. CO. v. DARBY ET AL.
• Decision Date: 29 October 1898
• Court: Supreme Court of Alabama

24 So. 713

119 Ala. 531

ALABAMA MIDLAND RY. CO. v. DARBY ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Pike county; J. M. Carmichael, Judge.

Action by J. R. Darby & Son against the Alabama Midland Railway Company, to recover damages for the failure of the defendant as a common carrier, to deliver goods to the plaintiffs.

Upon the introduction of all the evidence, the court at the request of the plaintiffs gave to the jury the following written charge: "If the jury believe from the evidence that the plaintiff received notice on November 4th, and on the same day went to get the goods, then the liability of the defendant as a common carrier had not ceased." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give the following written charge requested by it: "If the jury believe the evidence they should find for the defendant."

There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Affirmed.

W. L Parks, for appellant.

Hubbard & Hubbard, for appellees.

HARALSON J.

Suit by consignees against a common carrier for failure to deliver goods.

The case was commenced in the justice's court, by Darby &amp Son, where judgment was rendered in their favor against the defendant, by which it was taken to the circuit court, and retried with the same result.

The evidence tended to show that the goods shipped belonged to the plaintiffs. It also tended to show, on the part of the plaintiffs that the goods were never delivered to them, and on the part of defendant, that they were delivered. That on the part of plaintiffs also tended to show, that they were not advised of the arrival of the goods until the 4th November, 1896, when they applied for their delivery, and defendant failed and refused to deliver them; and that on the part of defendant, that it notified plaintiff of the arrival of the goods on the 3d of October, 1896, and on that day plaintiffs received them.

The evidence also further tended to show, that the goods were shipped consigned to plaintiffs from Montgomery without a bill of lading, and what purported to be one was not received by plaintiffs until the 4th of November, 1896, when defendant's agent, J. B. Cochran, at Troy, the place for the delivery of the goods, gave the same to one of the plaintiffs, signed by himself as agent. Cochran testified that he received the bale of goods at Troy on the 3d of October, 1896, and on the next day notified plaintiffs of their arrival; that plaintiffs did not demand the goods until the 4th of November following, when one of them paid the freight on the same, and that he, Cochran, gave him the paper which purports to be a bill of lading. This certainly was not the original,...