Louisville & N. R. Co. v. Carl

• Citation: 91 Ala. 271,9 So. 334
• Court: Supreme Court of Alabama
• Decision Date: 19 May 1891
• Parties: LOUISVILLE & N. R. CO. v. CARL.

9 So. 334

91 Ala. 271

LOUISVILLE & N. R. CO. v. CARL.

Supreme Court of Alabama

May 19, 1891

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge.

This action was brought by the appellee against the appellant corporation. All the facts are sufficiently set forth in the opinion. At the request of the plaintiff, the court gave the general affirmative charge in his behalf. There was judgment for the plaintiff, and on this appeal the defendant assigns as error the rulings of the court upon the evidence, and the giving of the charge asked.

J M. Falkner, for appellant.

Jas. M. Davison, for appellee.

STONE C.J.

This is a suit against the railroad company as a common carrier. The complaint is that the railroad company received from a connecting railroad line a lot of merchandise, to be delivered to plaintiff at Brewton, Ala., the place of consignment, and that there was a failure to deliver the merchandise when called for. There was no direct, positive proof that the merchandise, which was shipped from Lynchburg Va., ever reached the defendant railroad; and we suppose the defense was mainly, if not entirely, on that ground. Fagan was the agent of the railroad company, in charge of the depot at Brewton. Being examined as a witness for plaintiff, he testified "that on the 14th day of July, 1888, he, as agent of the defendant, received a number of way-bills of the defendant company for freight shipped to Brewton; that among the way-bills was one for 50 caddies of tobacco for H. Carl of Brewton, Ala.; that these way-bills were received about 6:30 P. M. on the evening of the 14th of July, 1888, and at the same time a freight-car was left on the side track of the depot of defendant in Brewton, which was loaded with freight and, in the regular order of the road's business, should have been the freight expressed or mentioned in said way-bills; and that during said night of the 14th of July, 1888, said car, with its contents, was burned and wholly destroyed by fire; that said car was not opened after its arrival in Brewton, and that he did not know what was in it, except from the way-bills; that he did not know whether said tobacco was in said car or not; that he had never seen said tobacco, and knew nothing about it, except what he saw on said way-bills." Plaintiff had previously testified in his own behalf that he called upon Fagan, defendant's agent, and, against defendant's objection, he was permitted to testify "that...