Nashville, C. & St. L. Ry. v. Hinds

• Decision Date: 12 June 1912
• Citation: 5 Ala.App. 596,59 So. 670
• Court: Alabama Court of Appeals
• Parties: NASHVILLE, C. & ST. L. RY. v. HINDS.

59 So. 670

5 Ala.App. 596

NASHVILLE, C. & ST. L. RY. v. HINDS.

Court of Appeals of Alabama

June 12, 1912

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by A. M. Hinds against the Nashville, Chattanooga & St. Louis Railway for loss of cattle while being transported. Judgment for plaintiff, and defendant appeals. Affirmed.

For decision of Supreme Court in answer to certified questions see 59 So. 669.

The pleas will be found set out in the report of this case as certified to the Supreme Court. The following charges were refused to appellant:

(1) "The court charges the jury that under the contract of shipment it was Hinds' duty to attend the cattle, and unload, feed, and reload them himself, or to have an agent along with him to do this for him; and if he failed to do this, and defendant delivered the car to Foust & Yarnell for this purpose, then the defendant will not be liable for the acts of Foust & Yarnell."

(2) "The court charges the jury that, if two of the cattle were sold at Chattanooga by Foust & Yarnell, you cannot find for plaintiff as to those two head of cattle."

(3) "The court charges the jury that there is no evidence tending to prove that the death of any of the cattle was due to any negligence of the defendant."

(4) Affirmative charge.

(5) "The court charges the jury that there is no evidence tending to show that the railroad company employed Foust &amp Yarnell to unload, feed, and reload the cattle."

(7) "The court charges the jury that Foust & Yarnell were the agents of Hinds, and not of this defendant."

(8) Same as 2.

(9) "The court charges the jury that if they believe the evidence there cannot, under any aspect of this case, be a recovery for more than two head of cattle."

(10) "The court charges the jury that if two head died on the way to Huntland, and if two were sold by Foust & Yarnell at Chattanooga, and if the death of the two at Huntland was not due to any fault of defendant, then there can be no recovery by the plaintiff for anything, regardless of what took place between Chattanooga and Atlanta."

(11) "The court charges the jury that under the evidence the defendant is not responsible for anything done by Foust &amp Yarnell, for the reason that the contract provides that the duty of loading, unloading, and feeding the cattle rested upon the plaintiff."

(12) "If Foust & Yarnell sold two head of cattle at Chattanooga, and if they have not paid the proceeds of the sale to Hinds, they, and not the defendant, would be liable therefor to plaintiff."

(13) "If two head of cattle were sold by Foust & Yarnell at Chattanooga, then the defendant was not liable for them whether the proceeds of the cattle have been paid to Hinds or not."

(14) "If 2 of the cattle were taken off dead at Huntland, and if their death was due to no fault of defendant, and if 2 of the cattle were sold by Foust & Yarnell at Chattanooga, and if 42 head were delivered in Atlanta, whether dead or alive your verdict must be for the defendant."

Street, Isbell & Bradford, of Guntersville, and Spragins & Speake, of Huntsville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.

DE GRAFFENRIED, J.

This suit was brought by the appellee for the damages which, in his complaint, he claims he suffered because of the failure of appellant to deliver to him, at Atlanta, Ga., four head of cattle shipped by him from Guntersville, Ala., to Atlanta. The cattle were shipped over the appellant's railroad in a car with other cattle. The appellee's evidence tended to show that there were in the car, when it was delivered to appellant, 47 head of cattle, averaging about 600 pounds each in weight; that they were not overcrowded in the car; and that when the car reached Atlanta 4 of the animals had disappeared from the car, and of the 43 remaining 1 was then dead, and 1 of the living animals died shortly after being taken from the car; so that the evidence of appellee tended to show that the appellant delivered to him only 42 head of cattle out of the shipment of 47 head. The dead cow, whose carcass was in the car when it reached Atlanta, was not an animal; it was the carcass of what had been, when alive, an animal.

The animals were first carried by appellant from Guntersville to Chattanooga. Between Guntersville and Chattanooga, there was evidence tending to show that two of the animals died and were thrown out of the car at Huntland, a station of appellant between Guntersville and Chattanooga. When the car reached Chattanooga, they were unloaded by Foust & Yarnell, who appear to have, contiguous to appellant's railroad, stockyards there. There was evidence tending to show that two of the cattle unloaded from the car by Foust & Yarnell were not loaded back into the car when it started on its journey to Atlanta, but were kept by Foust & Yarnell. While appellant contends that it had no connection with Foust & Yarnell, and that Foust & Yarnell were not its agents in the matter of unloading and reloading the car and in caring for the cattle while out of the car, nevertheless the witness who testified about what occurred in Chattanooga, and who was connected with Foust & Yarnell, shows that at least a part of the business of Foust & Yarnell was to unload and reload cattle for somebody--either the owners of cattle shipped in car load lots, or the railroads over which they were shipped--for this witness' testimony, fairly construed, shows that the unloading and reloading of appellee's cattle by Foust & Yarnell was in the line of their regular business. While he swears that his company has no connection with the railroad, nevertheless, among other things, he says the record of appellee's cattle "is made on a regular book I keep. This book is kept regularly in my business. * * * I always count them out of the car and go in the pen and count them."

The bill of lading introduced in evidence shows that it was issued to J. J. Hinds, and not to A. M. Hinds, the appellee. The evidence, however, without dispute shows that the contract of shipment was made by J. J. Hinds for and on behalf of A. M. Hinds; and that appellee was therefore a real party to the contract.

The bill of lading contains a clause providing that, in consideration of a special rate "lower than the tariff rate," the "party of the second part [appellee] hereby relieves said party of the first part [appellant] from the liability of a common carrier in the transportation of said stock and agrees that such liability shall be only that of a private carrier for hire." It also contains a provision that the appellee or "his agent will load and unload said stock at his own risk and feed, water and attend the same at his own expense; * * * and it is agreed that any expense so incurred by the party of the first part [appellant] in behalf of the party of the second part, or his agent or assigns, for feeding watering, loading, unloading or detention and care of...