Ala. Great Southern Railroad v. Eichofer

McCLELLAN, J. This is an action ex contractu for the non-delivery of goods by a common carrier in violation of the contract of carriage. It was well brought within six years under section 2615 of the Code, and the demurrer to defendant’s plea of the statute of limitations of one year. Code, § 2619—was properly sustained. The shipment was made over defendant’s line at Birmingham, Ala., to New York on July 19fch, 1888. Defendant’s evidence goes to show that the goods arrived at the depot of the Pennsylvania railway in New York on August 11th, 1888, and thence on for three years were properly stored there ready for delivery to the consignee, but that the consignee did not appear to receive them, that reasonable efforts were made on the part of the delivering carrier to find the consignee,-but without success, and that finally on October 6, 1891, the property was sent to Philadelphia to be sold for freight charges, &c. There was, on the other hand, evidence from which the jury might have inferred' that the goods were not received and stored in New York on. August 11th, 1888, or for months after that time. It was shown, for example, that the defendant’s agent in Birmingham though making repeated efforts to trace and find the property had not done so on the 15th December 1888, nearly five months after the shipment, and it is hardly reasonable to suppose that his efforts to this end would for so long have been abortive had the goods really been in the connecting carrier’s depot at the point of final delivery. There was testimony, too, that inquiries for the goods during September and October 1888, were made by or in behalf of the consignee at all of the delivering carrier’s depots in New York City, or at least at all of its depots along North River where the depot in which defendant’s witnesses say the consignment was received and stored was situated. This evidence upon either hand presented, as an issue of fact to be determined by the jury, the inquiry whether the goods were ever received at the New York depots of the delivering carrier at all or not, or at least whether they were so received within any reasonable time after their shipment from Birmingham. And if the jury had found that they did not reach New York at all or not till the lapse of from two to five months after the shipment, as they had a right to find, the non-delivery averred in the complaint would have been established, and plaintiff’s case made out. The existence of this right on the part of the jury, of course, demonstrates the propriety of the trial court’s refusal to give the affirmative charge for the defendant. [228] And we are not prepared to say that tbe verdict of tbe jury in line witb tbe tendencies of plaintiff’s evidence was so clearly against tbe weight of tbe whole evidence or so lacking in tbe support of evidence as to have justified tbe court below in granting a new trial. Tbe judgment of tbe Circuit Court is Affirmed.