Mobile & Ohio Railroad v. Jarboe

JUDGE, J. The exception inserted in the contract for the transportation of the freight, in the present case, viz., “ taken at the owner s risk” did not change the character of the employment. Appellant remained, notwithstanding the reception of the goods under the contract, a common carrier, with his liability, as such, diminished only to the extent of the exception.—Steele v. Burgess & Townsend, 37 Ala. 253-4, and cases there cited. A common carrier may legally contract for exemption from that responsibility imposed by the common law, by which he becomes an insurer. But, on grounds of public policy, he can not go farther than this, in the limitation of his liability by special contract.—Mobile & Ohio R. R. Co. v. Hopkins, decided at the present term. The construction of the contract in the present case, [648] therefore, must be, that the, goods received were “ taken at the owner’s risk,” in so far as the liability of appellant as an insurer was concerned. A portion of the goods not having been delivered at the place of destination, the loss was not brought within the exception therein contained, unless it appeared to have occurred without negligence on the part of appellant. The rule, as we have settled it in such case, is, that inasmuch as “ it is for the carrier to bring himself within the exception, he must make at least a prima-facie showing that the injury was not caused by his neglect.”—Steele v. Burgess & Townsend, 37 Ala. 253, and authorities there cited. This appellant failed to do. That the transaction occurred during the war, and appellant’s road about the time was frequently used by the military authorities in the transportation of Confederate troops and supplies, and that in consequence of the condition of the country, there was a great want of safety and certainty in the transportation of freights over the road, furnished good reasons for the insertion of the exception contained in the contract, but did not relieve appellant from that care and diligence, which, notwithstanding the exception, were elements of the contract, nor from the onus of making at least a prima-facie showing that the loss was not caused by its neglect. It did not even appear on the trial, that the missing boxes were ever started for their place of destination, after having been received by appellant. The evidence that appellee was “ a sutler for the army, and that the lost tobacco Avas a part of his sutler’s stores,” is no evidence that “Jus sutler’s stores” belonged to the Confederate States Government; nor can any such conclusion be legitimately drawn from this evidence. It results from what we have said, that there was no error in the charge given by the court, nor in either refusal of the court to charge as requested; and the judgment is consequently affirmed.