Western Ry. Co. v. Harwell

• Decision Date: 06 January 1891
• Citation: 8 So. 649,91 Ala. 340
• Parties: WESTERN RAILWAY OF ALABAMA v. HARWELL.
• Court: Alabama Supreme Court

8 So. 649

91 Ala. 340

WESTERN RAILWAY OF ALABAMA v. HARWELL.

Supreme Court of Alabama

January 6, 1891

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

Harrison & Ligon, for appellant.

J M. Chilton, for appellee.

CLOPTON J.

Appellee sues to recover damages for injury to one of a car-load of mules alleged to have been caused by the negligence of defendant. The mules were shipped from Columbia, Tenn consigned to the plaintiff at Opelika, Ala., under a special contract made with the Louisville & Nashville Railroad Company. They were carried by the receiving carrier from Columbia to Montgomery, Ala., and there delivered to defendant for transportation to Opelika, the roads of the two companies constituting connecting lines. Defendant sets up the special contract in defense of the action. In the general charge the court instructed the jury that defendant is not a party to the contract of shipment entered into with the Louisville & Nashville Railroad Company, and that the limitations upon the common-law liability of carriers therein contained are restricted and have reference alone to the transportation of the mules from Columbia to Montgomery, and do not inure to the protection of defendant. When the transportation of live-stock is undertaken, the carrier, in the absence of a modifying contract, assumes the like responsibility for their safe delivery as a carrier of inanimate property, with the qualification that he is not responsible for loss or injury resulting from the nature habits, propensities, viciousness, or other inherent qualities of the animals. He may, however, contract for just and reasonable exemptions from the unusual risks pertaining to the transportation of such freight. Railroad Co. v. Johnston, 75 Ala. 596. The general rule is that a carrier, over whose road the freight has to be carried in order to reach the point of destination, is entitled to the benefits of a contract, stipulating for immunity from liability in general terms, entered into by the carrier receiving the freight for through transportation over connecting lines to a point beyond its own terminus, or when, by the contract, the compensation for the entire distance is fixed by authority of the carriers over whose roads the freight has to be transported, and the contract has respect to and provides for such other carriers. When the receiving company transports the freight for an agreed compensation to its terminus, under a contract limiting its own liability, the freight to be delivered at its terminus to a connecting line, the duty of the receiving carrier ceases with the delivery in a safe condition to such connecting line, and there is no privity between the shipper and the second carrier is respect to the special contract. In such case, the second carrier is not entitled to the benefit of the exemptions of the contract, and the liability fixed by law attaches upon the acceptance and receipt of the freight. 2 Amer. & Eng. Enc. Law, 871; 32 Amer. & Eng. R. Cas. 474. These general rules may be qualified by the circumstances and the terms and character of the contract. Though it may not be for through transportation, and though no rate for the entire distance is fixed, if the contract refers to and embraces connecting lines, the carriers, over whose roads the freight must be transported, may adopt and act upon it, and thereby become entitled to the benefit of the valid exemptions created by the terms and conditions of the contract. Babcock v. Railway Co., 49 N.Y. 491.

By the contract of shipment, the Louisville & Nashville Railroad Company undertook the transportation of the mules at a stipulated rate from Columbia to Montgomery, and there to deliver them to the connecting carrier in the route to their destination, no compensation being fixed for the entire distance. The contract further stipulated that all liability of the receiving carrier should terminate when the mules were ready for delivery to the connecting line at Montgomery. Were this all,-were there no words in the contract extending its benefits to the connecting carrier,-it would be construed, on the foregoing principles, as having reference only to the transportation from Columbia to Montgomery, and as providing only for immunity from liability of the Louisville & Nashville Railroad Company. But the contract purports on its face to be made with the Louisville & Nashville Railroad Company "and its connecting lines," as party of the first part, and by it the shipper releases the Louisville & Nashville Railroad Company and its connecting lines from all liability, among other things, for and on account of any and all injury which the animals, or any of them, may receive, in consequence of any of them being vicious, wild, unruly, or weak; and in consequence of any of them being killed, bruised, or otherwise injured; and for loss and damage to the animals from any cause or thing whatever, not resulting from the negligence of the agents of servants of the party of the first part. It is further agreed "that, when necessary for said animals to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of said animals may be made to such other carrier or carriers for transportation, upon such terms and conditions as the carrier may be willing to accept: provided, that the terms and conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another." The contract, in terms, refers to and provides for the transportation of the mules over the connecting road, and makes provision for delivering upon terms and conditions acceptable to the second carrier, if unwilling to transport upon the terms and conditions of the contract, and for their extension to the benefit of such carrier, if there be no stipulation otherwise. There is no pretense of any other stipulation. The mules were carried from Montgomery to Opelika in the same care in which they were shipped from Columbia, and by the same way-bill. The provisions of the contract, defendant's acceptance and receipt of the mules for transportation in the same car furnished by the receiving carrier, without a stipulation otherwise, the payment to the Louisville & Nashville Railroad Company of the amount charged by that company as stated in the contract, its collection from plaintiff, and the charge of the reduced rate when live-stock is carried at the owner's risk, make a prima facie showing of ratification and transportation under the terms and conditions of the contract, and entitle defendant to the benefit of its exemptions. The court should not have instructed the jury, as matter of law, that the contract was restricted to the transportation from Columbia to Montgomery, and did not inure to the protection of defendant.

A shipper may not be bound by a bill of lading, varying the terms of a verbal contract under which animals are received for transportation, when delivered to him after they are on the way to their destination, so that he is in no position to object and reclaim them. But such is not the present case. It is not pretended that there was any verbal agreement, and though, according to the testimony of plaintiff, the car in which the mules were placed was on the track, and several hours elapsed before the signing of the contract, for aught that appears it was signed by the agent at Columbia, and signed by plaintiff after full...