Louisville & N. R. Co. v. Landers

• Decision Date: 20 January 1903
• Citation: 33 So. 482,135 Ala. 504
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. LANDERS.

33 So. 482

135 Ala. 504

LOUISVILLE & N. R. CO. v. LANDERS.

Supreme Court of Alabama

January 20, 1903

Appeal from circuit court, Calhoun county; D. C. Blackwell, Special Judge.

Action by J. C. Landers against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint contained six counts, each of the counts being in the statutory form for suit against a common carrier on a bill of lading. The defendant pleaded the general issue, and by special pleas set up the violation of special stipulations, which were agreed to by the shipper, in the bill of lading issued by the defendant. The plaintiff introduced evidence tending to show that a number of cattle which had been shipped over the defendant's railroad were injured during transportation, and that said injuries were caused by negligence on the part of the defendant or its employés. The defendant introduced evidence tending to show that the injuries caused to the cattle, for which the suit was brought, were occasioned by reason of the cattle being crowded in cars without reference to their size or weight and, further, because there were no partitions made by the plaintiff in the cars, as he agreed to do. The facts of the case relating to the rulings of the trial court reviewed on the present appeal are sufficiently stated in the opinion. The court, at the request of the plaintiff, gave to the jury the following written charges: "(1) The court charges the jury that, in order to entitle the plaintiff to recover he need only show delivery to the railroad in good condition unreasonable delay in transportation, and delivery in bad condition; and, if the plaintiff has shown these facts, the jury will find the issue in favor of the plaintiff, unless the evidence also satisfy the jury that the railroad company was not guilty of negligence. (2) If the jury believe that the defendant negligently delayed to ship the cattle from Montgomery, or negligently permitted them to stand upon the track for several hours at Calera, and that the cattle were injured thereby, then the jury will find the issue in favor of the plaintiff. (3) If the cattle were in good condition when delivered to the defendant railroad company at Montgomery, and there was an unreasonable delay in transportation, and the cattle after such delay were delivered in bad condition, the presumption is that the injury resulted from the negligence of defendant. (4) If the defendant failed to deliver the cattle in a safe condition within a reasonable time, the presumption of negligence on the part of the defendant arises, and the burden of proof is shifted to the defendant to excuse itself from negligence and, if this burden has not been discharged, the jury must find the issue in favor of the plaintiff." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by it: "(1) I charge you, gentlemen of the jury, that you cannot find for the plaintiff for any damage occasioned by the death of any of these stock after the same had left Attalla, Alabama, if you believe from the evidence that no notice was given the defendant or its agent at Attalla, or elsewhere, except the notice testified to by J. C. Landers and Judge Pelham. (2) I charge you, gentlemen of the jury, that the undisputed evidence in this case shows that the plaintiff only gave notice to the defendant of the loss and damage of fourteen head of cattle, and you cannot find for the plaintiff for any damage on account of the loss or death of any other cattle after the same left Attalla, Alabama. (3) I charge you, gentlemen of the jury, that unless the evidence shows that the plaintiff gave notice of the damage to the cattle to the defendant or its agent before the cattle were taken from the cars at Attalla, and before leaving the yard of the company, then you cannot find for the plaintiff." The other charges requested by the defendant, to the refusal to give each of which it separately excepted, were the general affirmative charge upon the whole of the complaint, and the general affirmative charge in favor of the defendant upon each count of the complaint separately.

Tyson, J., dissenting.

Thos. G. & Chas. P. Jones, for appellant.

W. P. Acker, for appellee.

DOWDELL J.

The complaint in this case is in the prescribed form of the Code, No. 15, p. 946, for suit against a common carrier on a bill of lading. There are six counts. and in the four last the plaintiff claims as assignee. A demurrer was interposed to the complaint, which was overruled, but the assignment relating to this ruling is expressly waived by the appellant.

The first contention of counsel in argument for appellant is that the subject-matter of the suit is a chose in action, of which there can be no valid assignment; the insistence being that section 877 of the Code, authorizing the assignment in writing of claims against railroad companies for injuries to property, and suits thereon in the name of the assignee, is an unjust discrimination against railroad corporations as a class, and violative of section 12, art. 14, of the constitution of 1875. There is no...