Atlantic Coast Line R. Co. v. Dothan Mule Co.

• Decision Date: 24 May 1909
• Citation: 161 Ala. 341,49 So. 882
• Parties: ATLANTIC COAST LINE R. CO. v. DOTHAN MULE CO.
• Court: Alabama Supreme Court

49 So. 882

161 Ala. 341

ATLANTIC COAST LINE R. CO. v. DOTHAN MULE CO.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by the Dothan Mule Company against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Espy &amp Farmer, for appellant, R. D. Crawford, for appellee.

MAYFIELD J.

This was an action by appellee, a shipper, against appellant, a common carrier, to recover $150 damages for the negligent injury of a mule delivered to and received by the defendant, as a common carrier, for shipment and delivery to the plaintiff at Dothan, Ala. The specific negligence or wrongful act of the defendant, relied upon to constitute the cause of action and which is alleged to have proximately contributed to the injury, was the employment of a defective chute, which had been provided or was maintained by the defendant company, for unloading the mules, by reason of which defect the mule of the plaintiff, in being unloaded by the defendant from its cars, slipped and fell, and thereby received injuries from which it died, to the damage of the plaintiff.

There were demurrers to the original complaint, and to the amended complaint, which were overruled by the trial court, and to which the defendant pleaded the general issue and a special plea, No. 2, being a special contract of shipment by which the defendant limited its common-law liability as to injury of live stock, alleging that the plaintiff thereby released the defendant from assumed risk or injury to the animals shipped, and that the plaintiff thereby undertook and agreed to load and unload the live stock, the subject of the suit, at the owner's risk, and that, in the event that any of defendant's agents, servants, or employés should assist in the unloading of the stock, such employés, agents, or servants should be considered the employés, agents, or servants of the shipper, the plaintiff, and that the injury to the animal complained of, occurred while the owner was unloading from the car at his own risk. There was also another special plea, No. 3, which attempted to limit the amount of damages to the price fixed by the contract of shipment.

The plaintiff demurred to these pleas, and, his demurrer being overruled, filed several replications, to which the defendant demurred. Defendant's demurrers were sustained, except as to replication No. 2 to plea No. 3, as to which the demurrer was overruled. Issue was joined upon pleas 1, 2, and 3, and upon replication No. 2 to plea No. 3, resulting in a verdict and judgment for the plaintiff in the sum of $110. From that judgment the defendant appeals, and here assigns various errors, but only one of these is insisted upon in the...