Atlantic Coast Line R. Co. v. J.S. Carroll Mercantile Co.

• Decision Date: 30 June 1921
• Docket Number: 4 Div. 915
• Citation: 89 So. 509,206 Ala. 320
• Parties: ATLANTIC COAST LINE R. CO. v. J.S. CARROLL MERCANTILE CO.
• Court: Alabama Supreme Court

89 So. 509

206 Ala. 320

ATLANTIC COAST LINE R. CO. v. J.S. CARROLL MERCANTILE CO.

4 Div. 915

Supreme Court of Alabama

June 30, 1921

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Action by the J.S. Carroll Mercantile Company against the Atlantic Coast Line Railroad Company for damages to live stock in transit. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911 p. 450. Reversed and remanded.

John R Tyson, of Montgomery, for appellant.

John H Wilkerson, of Troy, for appellee.

SOMERVILLE J.

Section 8604a (Interstate Commerce Act, c. B) of U.S.Comp.St.1918, makes it unlawful for common carriers of interstate shipments--

"to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months *** Provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition to recovery."

In response to defendant's special pleas averring that this was an interstate shipment and that plaintiff had not filed his claim with defendant within 60 days, as required by the contract of shipment, plaintiff replied that the injuries complained of were due to the negligence of defendant in handling the car of mules between Montgomery and Troy.

In this state of the pleadings, the burden of showing negligence on the part of the carrier having been expressly assumed by plaintiff, that became the sole issue in the case; and it is therefore unnecessary to determine whether a proper construction of the federal act above quoted would so place the burden in this case.

The evidence permits the inference that the injured animals received their injuries between the points mentioned, but we do not discover in the evidence anything which tends to support the charge of negligence on the part of the carrier. The suggestion that the animals looked like they had been knocked down in the car "by a heavy jerk or something" is too vague to be of value, and is obviously the mere conjecture of the witness. There is no evidence of such a jerk, and, if there were, there is nothing to show that it was due to negligence in the operation of the train. We judicially know, as...