Columbus & W. Ry. Co. v. Ludden

• Decision Date: 15 April 1890
• Citation: 7 So. 471,89 Ala. 612
• Court: Alabama Supreme Court
• Parties: COLUMBUS & W. RY. CO. v. LUDDEN ET AL.

7 So. 471

89 Ala. 612

COLUMBUS & W. RY. CO. v. LUDDEN ET AL.

Supreme Court of Alabama

April 15, 1890

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by Ludden & Bates against the Columbus & Western Railway Company, as a common carrier, for goods destroyed by fire while in defendant's depot. There was a judgment for plaintiffs, and defendant appeals.

Harrison & Ligon, for appellant.

J M. Chilton, for appellees.

MCCLELLAN J.

It has been supposed by some text-writers and annotators that this court, following that line of authority on the subject of which Norway Plains Co. v. Boston, etc., Ry. Co., 1 Gray, 263, is the leading case, has adopted the rule that the extraordinary liability of a railway company as a common carrier of goods ceases when the consignment arrives at its destination, and is unloaded from the cars, and that nothing further, so far as the transit is concerned, remains to be done by the carrier, and that thereafter the liability of the carrier is that only of a warehouseman for hire. This supposition is based on an interpretation of the opinion in the case of Railroad Co. v. Kidd, 35 Ala. 209, which has never obtained in this court, or been entertained by the profession here. That case has always been construed by this court to sustain the rule which extends the liability, as such, for a reasonable time after the transit has been completed, for delivery of goods to consignees. Railroad Co. v. McGuire, 79 Ala. 395. And our later decisions fully support the rule first announced by the supreme court of New Hampshire in the case of Moses v. Railroad Co., 32 N.H. 523, and ably vindicated by Justice COOLEY in McMillan v. Railway Co. 16 Mich. 79, and now recognized by text-writers, and by many courts of last resort, as sound in principle,-that the liability of a common carrier by rail, as an insurer of the consignment, continues throughout the transit, and until the goods have been unloaded from the cars and deposited in the depot or warehouse of the carrier, or otherwise made ready for delivery, and a reasonable time thereafter has elapsed to afford the consignee an opportunity to come and take them away, and that only after the lapse of such reasonable time beginning when the transit is complete, and the shipment is ready for delivery, will the liability-in the absence of special stipulation-of the carrier, as such, be converted into the less rigid and exacting liability of a warehouseman for reward. Hutch. Carr. § 373; 2 Redf. R. R. 79-82; Express Co. v. Armstead, 50 Ala. 350; Kennedy v. Railroad Co., 74 Ala. 430; Railroad Co. v. McGuire, 79 Ala. 395; Railroad Co. v. Grabfelder, 83 Ala. 200, 3 South. Rep. 432; Railway v. Little, 86 Ala. 159, 5 South. Rep. 563.

There is also great conflict of authority whether notice of the arrival of goods at the point of destination should be given to the consignee by the carrier before the reasonable time within which the extraordinary liability will continue begins to run; or, in other words, whether the relation of carrier to the property gives place to that of warehouseman, in any case, until such notice has been given, and opportunity thereafter afforded to the consignee to receive and take away the consignment. In this state, however, the rule, certainly in all cases where the delivery is not to be made at a town of 2,000 inhabitants, having a daily mail delivery, as to which there is a statutory provision, (Code, § 1180,) is settled that no such notice is necessary, and that the change in the degree of the railway's liability will be affected by the lapse of a reasonable time for the property to be taken away, in the absence of notice. Railway v. Little, supra; Railroad Co. v. Wood, 66 Ala. 167; Railroad Co. v. Oden, 80 Ala. 38.

Where the evidence on the point as to the length of time which has elapsed from the arrival and unloading of the goods to the time at which it is claimed the liability as common carriers ceased, and that of warehouseman attached, is without conflict, the question should not be submitted to the jury, but is one of law, for the determination of the court. Hutch. Carr. § 376; 2 Redf. R. R. 75, 76; Roth v. Railroad Co., 34 N.Y. 548. In the case at bar, there was a conflict in the evidence as to the length of time elapsing between the arrival of the property and its destruction by fire; one aspect of the testimony showing the lapse of six days, and the other three days. There was no conflict as to the fact that the goods had been kept by defendant in its warehouse, ready for delivery, as long as three days; nor was the testimony at all conflicting as to any other fact, as, for instance, the length of the carriage, or other circumstance bearing on the question as to whether the consignment might have been expected to arrive at any definite date, the character of the goods, etc., proper to be looked to in determining whether the consignee had had a reasonable time to have taken away the property before the fire which destroyed it. The submission of this matter to the jury, therefore, can only be justified on the theory that six days were such reasonable time, and three days were not, since, if no period which the evidence tended to show was sufficiently long, the court should, as a matter of law, have held the defendant to the liability of a common carrier, and, if any period which all the testimony concurred in establishing was sufficiently long, in like manner the court should have held, aside from custom, that the liability as insurer had ceased, and that of bailee had begun.

In determining the question as to how long the carrier's liability as...