Alabama Great Southern Railroad v. Gewin

WALKER, P. J. — This was an action by the appellees to recover damages for injuries to one of a car load — 589 — of horses resulting in its death, which injuries were averred to have been sustained while the horse was in the possession of the appellant (defendant below) as a common carrier. The horses were shipped from East St. Louis, Ill., consigned to the plaintiffs at Akron, Ala., a station on .the defendant’s road under- a contract made with the Louisville & Nashville Railroad Company, the initial carrier. They were delivered to the defendant, á connecting carrier, at Birmingham, Ala., in apparently good condition, and were by it carried to Akron, reaching that place between 2:30 and 3 o’clock a. m. on the 17th day of February; the car containing them being detached from the train and left on the defendant’s side track at that place. One of t-h'e plaintiffs saw the horses in the car between 6 and 7 o’clock that morning, but his inspection of them was such as could be made from the outside of the car bv one looking through the spaces between the slats by which it was enclosed. The car was not opened at that place, but Avas reshipped by the plaintiffs over the Southern Raihvay to Greensboro, leaving Akron at about 12:30 -p. m., and arriving at Greensboro at 1:30 p. m. of the same day. When the animals Avere unloaded on their arrival at the latter place, the one in question, a mare, was found to have received a long cut over its eye and to have been considerably bruised about the hips, from which injuries it died in a short time thereafter. The responsibility of the defendant as a common carrier was not terminated by the arrival of the car containing the horses at Akron, nor by the placing of it on the side track at that place, but contined until the delivery, actual or constructive, of the car to the consignees or their agent, or until they had had á reasonable time, after knowledge or notice of the arrival of the horses, to call for and receive them. — Moore on Carriers, 147. - — 590 — Upon the plaintiffs showing that the mare was injured while it was in the custody of the defendant as a common carrier, the burden is put upon the defendant to show that the injury happened without fault on its part, or under circumstances in which, under a valid provision of the contract of shipment, it was exempted from liability. — Western Railway Co. v. Harwell, 91 Ala. 340, 8 South. 649; Nashville, Chattanooga & St. Louis Ry. v. Parker & Co., 123 Ala. 683, 692, 27 South. 323. The plaintiffs undertook to prove that the injury to which the death of the mare was attributable occurred while it Avas still in the custody of the defendant as a common carrier, and for this purpose examined a Avitness who was shown to be qualified by actual experience and long observation to form an opinion of some probative value, based upon the appearance of a wound on a horse and of the blood found about it, as to the length of time such Avound had been inflicted before it Avas observed by the Avitness. The Avitness Avas asked the question, “How long, in your opinion, had that Avound been inflicted on the mare’s head, from the appearance of the blood around the wound?” The question was objected to on a number of grounds. It Avas not subject to objection because of its calling for the opinion of the witness. A proper preliminary showing Avas made to the court to Avarrant it in permitting the witness to be examined as an expert on the subject in reference to AA'hicli his opinion was called for. — Jones on Evidence, § 368; Code, § 4011. Nor Avas the question subject to objection which Avas passed on in the case of Louisville & Nashville R. Co. v. Landers, 135 Ala. 504, 511, 33 South. 482, that it called for the opinion of the Avitness as to a fact in issue. The question called for the opinion of the Avitness, not upon the fact in issue of the animal having been hurt — 591 — while it was in the custody of the defendant as a common carrier, but upon the question as to how long the wound had been inflicted before it was discovered upon the arrival of the animal at Greensboro. The court did not err is overruling the objection to the question. The answer of the witness to the question was: “In my opinion, from the appearance of the blood around the wound on the mare’s head, it had been inflicted 8 or 10 hours before the arrival of the train at Greensboro.” The motion of the defendant to exclude this answer was properly overruled. The suggestion made in the argument of the counsel for the appellant that the answer should have been excluded as irrelevant cannot be sustained. The testimony was relevant as having some tendency to prove that the injury was inflicted at a time when the defendant’s liability as a common carrier had not terminated. There was evidence tending to show that the defendant had continued liable as a common carrier up to within 8 hours preceding the time of the arrival of the animal at Greensboro. It follows from what already has been said as to the tendency of the evidence to prove that the animal received the injury from which it died at a time when the defendant was still liable for it as a common carrier, and from the absence of uncontradicted evidence showing how that injury was inflicted, that the defendant was not entitled to the general affirmative charge requested in its behalf. The defendant could not have been prejudiced by the refusal of the court to give written charge 6 requested by it, as substantially the same proposition which that charge embodied was asserted in written charge E, which was given at its request. For a like reason the refusal to give charge Al cannot be complained of, as the de — 592 — fend ant, under charge 7 given at its request, had the benefit of the proposition stated in it. Charge B ignored the proposition that the defendant’s liability as a common carrier was not terminated' as soon as one of the consignees saw the animals after their arrival at the point of destination, before they had a reasonable time, after knowledge or notice of their arrival, to call for and take charge of them. Charge F was properly refused, because under it the jury would have been required to return a verdict for the'defendant, though they found from the evidence that the injury to the animal was inflicted before the liability of the defendant as a common carrier had terminated, and that there was no explanation as to how the injury was inflicted. The court was justified in refusing to give charge G because of its failure to hpyothesize the defendant’s freedom from fault in reference to the injury of the animal in the manner hypothesized in that charge. Under the stipulation in the shipping contract which was set up in flie defendant’s plea. 2, the carrier was relieved of liability for an injury so caused only in the event of its so happening “without fault or negligence” on its part. For a like reason the refusal to give charge A ihay he justified because of its failure to hypothesize that the injury was inflicted upon the animal in question in consequence of any of the animals in the car “being vicious, wild, unruly, or weak,” as alleged in the plea setting up ah exemption from liability in such an event. Charge 8, refused to the defendánt, improperly assumed that the Southern Railway Company was the delivering carrier under the contract of shipment to which' the defendant became a party by accepting the car load of horses for carriage to the point of destina — 593 — tioni on its line which was named in that contract. The délivery of the animal in an injured condition at that point of destination cast on the defendant the burden of proving that the cause of the injury was one for which, under the terms of the contract, it was not liable, though the delivery was made to the Southern Railway Company, authorized by the plaintiffs to' receive the car at Akron under a separate contract for its carriage from that place to Greensboro. — Moore on Carriers, 532. ■ We discover in the record no error of which the appellant can complain. Affirmed. de Graffenribd, J., not sitting. On Application for Rehearing. WALKER, P. J. — It is earnestly insisted by the counsel for the appellant, in the brief filed in support of the application for rehearing, that charge G requested- by the defendant was not subject to the criticism of it made in the foregoing opinion. It is contended that .that charge so states the hypothesis that the injury com.plained of Avas attributable to another cause as to ex-, elude negligence or fault on the part of the defendant in reference to the matter. The claim, in effect, is that the charge as it was written would have meant the same thing if its first sentence, instead of reading as it does, had read as follows: “If the injury occurred from the inherent viciousness of the animals in said car, or one of them, without fault or negligence on the part of the .defendant, you- must return a verdict for the defendant.” We cannot concur in this view of the matter. The statement in. the charge in question of the predicate for a verdict in favor of the defendant omitted a materia] feature of the defense set up in the — 594 — defendant’s special plea. That plea averred the existence in the contract of shipment of a provision to the effect that the carrier should not be liable for an injury inflicted upon any of the animals in consequence of any of them being vicious, Avild, unruly, or Aveak, Avithout fault or negligence on the part of the carrier, and that “the injuries alleged to have been inflicted upon the mare in question, and the damages, done to her, and her consequent death due to such injuries, Avere inflicted upon said mare, Avithout fault or negligence on the part of this defendant, by some of the other animals in the car, and Avas due to the viciousness, wild ness, or unruliness of the animal or animals Avhich injured said mare, and Avas done Avithout fault or negligence, on the part of the defendant.” It could not Avell be claimed that the plea Avould have meant the same thing if it had omitted the averments as to the defendant’s freedom from fault or negligence. If those averments had been omitted, the plea Avould have alleged merely the existence of the stipulation mentioned, and that the injury to the mare in question Avas due to the viciousness, Avildness, or urn ruliness of some other animal or animals in the car. This Avould not have shoAvn that the injury occurred under such circumstances as, by the terms of the stipulation as averred, the defendant Avould be relieved of liability, as negligence on the part of the carrier, for instance, in the manner of reloading the animals after they Avere fed or Avatered, might have exposed the one in question to injury by vicious or unruly animals in the lot. In that event, though the mare in question Avas injured by the kick of a. vicious horse in the car, the defendant Avould not have been free from fault or negligence in the matter. An averment to the effect that the injury Avas due to the viciousness of another animal Avould no more involve the assertion that the defendant was free from — 595 — fault or negligence in reference to the matter than an averment in a complaint in a personal injury suit that the plaintiff’s injury was caused by the negligence of the defendant would involve the assertion that the plaintiff was not guilty of contributory negligence. It has long been settled in this state that such an averment in such a pleading does not mean the same thing as would have been meant if it had been coupled with the further averment that the plaintiff was not guilty of contributory negligence. — Kansas City, Memphis & Birmingham R. Co. v. Crocker, 95 Ala. 412, 11 South. 262. It Avas only by virtue of a. special stipulation on the subject that the defendant set up any claim that, because of the way in AA’hich the injury complained of was inflicted, it was relieved of its liability as a common carrier for the thing carried. • In the only plea in this case which set up' the existence of any such stipulation it was averred, not merely that the injury complained of Avas due to the viciousness or unruliness of one or more other animals in the car, but that the appellant Avas free from fault or negligence. A material part of the matter Avhich the defendant by that plea set up in avoidance of the liability with which it was charged was that it was free from fault or negligence in reference to the injury complained of. To sustain that plea the burden was upon the defendant to prove all its material averments. There Avas no other pleading or defense in the case to AAdiich charge G- could have been applicable. We are still of opinion that that charge was faulty in that it omitted from its statement of the predicate for a verdict in favor of the defendant the material feature of the special defense pleaded that the injury complained of occurred Avitliout fault or negligence on the part of the defendant. — 596 — As to other rulings which are brought into question' by the application for a rehearing, we think that the reasons which are regarded as furnishing support for them aré sufficiently stated in the foregoing opinion. Application for rehearing overruled. ob Graffenried, J., not sitting.