Central of Georgia Ry. Co. v. Dothan Mule Co.

• Decision Date: 15 April 1909
• Citation: 159 Ala. 225,49 So. 243
• Parties: CENTRAL OF GEORGIA RY. CO. v. DOTHAN MULE CO.
• Court: Alabama Supreme Court

49 So. 243

159 Ala. 225

CENTRAL OF GEORGIA RY. CO. v. DOTHAN MULE CO.

Supreme Court of Alabama

April 15, 1909

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by the Dothan Mule Company against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Steiner Crum & Weil and W. F. Thetford, Jr., for appellant.

Hill Hill & Whiting, for appellee.

MAYFIELD J.

This is an action by the shipper of live stock to recover damages from the delivering carrier for injury to the live stock delivered by the carrier to the shipper. Issue was joined upon the complaint after counts 7 and 8 were stricken, which resulted in a verdict for the plaintiff for $748.80, from which judgment the defendant appeals. Defendant also made a motion for a new trial, which was denied by the court, and the action of the court in denying the motion he assigns as error on this appeal.

It is assigned as error that the trial court gave, as a part of its oral instructions, the following: "But where the carriage of freight is to be over several connecting carriers, as was the case here, it seems that if the consignee, the consignee bringing the suit in this case shows to the jury that the animals were in good condition when delivered to the initial carrier, and that they were not in good condition when delivered by the discharging carrier, and the suit is against the discharging carrier, then these facts alone, without any more, put the burden on the defendant, the discharging carrier, to show to the reasonable satisfaction of the jury that the harm and injury did not come to the animals while they were in the keep of the discharging carrier, and that is the law in this case, and it will be for you to make application of it to the evidence as you have heard it." It is also assigned as error that the trial court refused to give written charge No. 8, requested by defendant, as follows: "The court charges the jury that under the evidence the mere fact that witness F. M. Perry testified that the animals sued for did not show damage when they were unloaded from the car, after they were transported to Montgomery by the Louisville & Nashville Railroad Company, does not prove that the animals were in good condition when they were delivered to defendant." The third assignment of error is "that the court below erred in overruling motion of defendant for a new trial."

It is insisted by appellee that the bill of exceptions should be stricken in this case; but it is unnecessary for us to consider that question, for the reason that the case must be affirmed, though the bill be not stricken.

The part of the oral charge excepted to above, embraced as the first assignment of...