Ala. Great Southern Railroad v. Thomas & Sons

SOMERVILLE, J. The suit is for damages claimed by the owner and shipper of certain cattle, for injury to the animals, which is alleged to have been the result of the defendant’s negligence, growing out of a violation of duty, imposed by the contract of shipment. The agreement of the railroad was to receive the cattle at Epes’ Station, in this State, and to transport them to Meridian, each of these points being on its own line, and, as agent of the shipper, to forward the animals from the latter place to New Orleans. The shipper agreed to load, unload, and take proper care of the cattle, while in transitu. • The contract, also, attempts to limit the defendant’s liability to injuries caused by “gross or wanton negligence,” and to that of a mere forwarding agent of the shipper in the matter of delivering the cattle to the next connecting line. The complaint was amended several times, and some questions are raised, both by demurrer and plea, as to the legality of these amendments as properly coming within the lis pendens, and the effect of the statute of limitations which was interposed as a defense to them. Before considering these points, we formulate the following principles, as governing some of the most important issues involved in the case: 1. Where a railroad, or other common carrier, receives goods consigned beyond the terminus of its own road, with the agreement to deliver to a connecting line, the contract of [301] shipment imposes not only the duty to transport safely over its own road, but to safely deliver to the next connecting carrier. The duty assumed, in other words, is both to safely carry, and to safely deliver.—Wells v. Thomas, 72 Amer. Dec. 228, note pp. 236-237; Ala. Gr. So. R. R. Co. v. Thomas, 83 Ala. 343. 2. In such case, the liability of the first road, or carrier, does not necessarily terminate with the arrival of the goods at its own terminal depot, although its responsibility as carrier may terminate there, if there is no further duty of carriage in order to make the connection with the other road over which the goods are to be transported. If there be any duty to carry the goods over an intermediate short line, connecting its own terminal depot with the other connecting road, in order to complete the act of delivery, its liability on the intermediate line obviously is that of a carrier, and not of a forwarder, especially if this line be a part of its own road.-Goold v. Chapin, 20 N. Y. 259; 75 Amer. Dec. 398. 3. The carrier, in undertaking to forward goods beyond the terminus of its own route, is bound to obey all reasonable instructions of the shipper, or consignor, not in conflict with the terms of the contract of shipment; and if he disregard such instructions, and the goods be lost by reason of this act of negligence, he will be liable for their value, although the loss may occur in the possession of another carrier, or person.—Johnson v. N. Y. Central Trans. Co., 88 Amer. Dec. 416. “If, in forwarding, shipments are made in a manner prohibited by the sender, the carrier so forwarding is liable as an insurer for the safe delivery of the articles so sent.” — Ib. 418, and cases cited in note; McGhee v. Camden R. R. Co., 45 N. Y. 514. 4. The carrier can not limit his liability, so as to evade responsibility for injuries which may occur through the negligence of his own servants — such contract being deemed contrary to public policy.—Ala. Gr. So. R. R. Co. v. Thomas, 83 Ala. 343; 3 Brick. Dig. 119, § 39, and cases cited. 5. The liability of a common carrier, except so far as lawfully limited by special contract, is that of an insurer against all losses, except those occasioned by the act of God, the public enemy, or the contributory negligence of the consignor.—L. & N. R. R. Co. v. McGuire, 79 Ala. 395; Ala. Gr. So. R. R. Co. v. Little, 71 Ala. 611; L. & N. R. R. Co. v. Sherwood, 84 Ala, 178. [302] 6. In so far as the • carrier acts as a mere forwarder, assuming as agent of the consignor to have the goods forwarded by a connecting line, he is liable only as bailee for the exercise of ordinary care, or such care as persons of ordinary prudence exercise in reference to their own property under like circumstances.—Baltimore R. R. Co. v. Schumacker, 96 Amer. Dec. 510; Hooper v. Wells, 85 Ib. 211; Story on Bailments, sec. 444. 7. In construing a bill of lading given by the carrier for the safe transportation and delivery of goods shipped by a consignor, the contract will be construed most strongly against the carrier, and favorably to the consignor, in case of doubt in any matter of construction. 8. In the present case, the duty imposed upon the defendant railroad was not only to carry the cattle safely from Epes’ Station to its depot at Meridian, but to deliver them safely for transportation to the agents of the connecting road. It is immaterial whether the cattle were delivered in the original cars in which they were stored, belonging to defendant’s road, or in cars furnished by the connecting road. If the defendant accepted such cars, and had the cattle transferred to them for shipment, preparatory to delivery to the connecting road, the duty devolved on its agents to do one of two things: (1) to permit the consignor, Thomas, to put the cars in proper condition to safely transport the cattle, as he had agreed to do; or (2) to itself perform this duty with reasonable care and diligence. This duty included, as the evidence tends to show, the act of providing suitable bedding for the cars, partitions to keep the cattle apart, and the exercise of proper care in not unduly crowding the animals together in too great numbers in any one car. The defendant’s depot agent at Meridian, Reeder, attended to the matter of transferring the cattle. The Alabama Great Southern Railroad, and the Mobile & Ohio Railroad to which the cattle were delivered, connected with each other at a union depot, in the town of Meridian, where the roads intersected or crossed. The. freight depots of the two connecting roads were each about a quarter of a mile from the Union depot, or crossing. The intermediate line of delivery was, therefore, a half mile in length — connecting the two freight depots. 9. The conversation between the plaintiff and Reeder, to which objection was taken by the appellant, was perfectly competent, to prove that the plaintiff had used all proper [303] diligence in seeking to perform his part of the shipping contract, as to taking due care of the stock, and that the defendant’s agent had relieved him of the duty of bedding cars, and otherwise preparing them for shipping the cattle. That this was within the scope of the agent’s authority there can be no doubt. The authority to keep the cattle in the original cars, or transfer them to others furnished by the Mobile & Ohio road, involved by implication the duty to put the cars in suitable condition for this transfer, or else to allow the plaintiff to do so under his contract.—East Tenn., Va. & Ga. R. R. Co. v. Johnston, 75 Ala. 596. The evidence scarcely admits of more than one reasonable inference as to the cause of the injury to the cattle. This injury was obviously the result of the negligent manner in which the cattle were placed in the cars — the failure to furnish bedding and partitions, and, perhaps, the act of overcrowding the cattle in one of the cars. Such injury was of a kind likely to happen in the ordinary course of things, and was therefore the natural and proximate consequence of the negligence complained of, in the absence of some intervening cause which may have produced it. The duty thus violated by the defendant, was the duty to deliver the cattle in a safe condition to be transported by the connecting road — this having been undertaken by the defendant under circumstances to relieve the plaintiff of such obligation. There was no duty on the connecting road to do more than to transport, and this it did. It was under no liability for failing to take care of the stock during the period of transportation. The evidence further tends to show that the plaintiff did all in his power to avert the damage which resulted from the negligence in question, and hence no act of contributory negligence can be imputed to him. In this view of the case, all of the charges requested by the defendant were properly refused. 10. This is manifestly not a suit for a tort perpetrated by a foreign corporation in another State, based on a violation of duty growing out of a contract made in such foreign jurisdiction, as was the case of Central R. R. & B. Co. v. Carr, 76 Ala. 388; 52 Amer. Rep. 339. The defendant is a domestic corporation, and the contract made the basis of the alleged breach of duty was also made in this State, There can be no doubt of the proposition, therefore, that the courts of this State have jurisdiction of the case made by the pleadings and evidence. [304] 11. As to the rulings of the court on the pleadings, we may observe that we discover no error. The various amendments allowed to the complaint do not, in our opinion,-introduce a new cause of action different from that stated in the original count of the complaint. The gravamen of the action is an injury caused to twelve head of cattle shipped by the plaintiff on the defendant’s railroad, on April 29th, 1886, which injury was alleged to be the result of the dedefendant’s negligence. The several amendments each make a case based on some alleged violation of duty growing out of the undertaking to ship these same cattle. They may correct a misdescription of the contract, as to the agreed point of destination of the cattle, or otherwise cure an imperfect statement of the same subject-matter, or add new averments of facts, more clearly showing the negligence complained of, or otherwise altering the grounds of recovery, or varying the alleged 'mode in which the defendant has violated his duties growing out of the agreement embraced in the bill of lading; but they go no further. The identity of the matter upon which the suit is fouuded, is fully preserved. The amendments all fall within the Us pendens proper, and only subserve the purpose of accomplishing substantial justice between the parties, and of deciding the pending controversy on its real and true merits. This is the main design of all statutes allowing amendments to pleadings. The statute of limitations of one year was, for these reasons, no sufficient answer to the new counts added to the complaint by way of amendment.—Ala. Gr. So. R. R. Co. v. Chapman, 83 Ala. 453; Stevenson v. Mudgett, 34 Amer. Dec. 155, and note pp. 158-160; Dowling v. Blackman, 70 Ala. 303; Long v. Patterson, 51 Ala. 414; Albright v. Mills, 86 Ala. 324. The assignments of error not particularly considered are, in our judgment, not well taken. We discover no error in the record, and the judgment is affirmed.