Louisville & Nashville Railroad v. Shepherd

WALKER, P. J. Plea B, after setting out that the animals were shipped under a special contract, made in consideration of a reduced rate for their transportation, averred that “the plaintiff agreed in and by said special contract that he would, at his own expense, provide such bedding or other suitable appliances in the car in which said animals were shipped as would enable them to stand securely on their feet while in said car; and the defendant avers that the plaintiff failed to provide such bedding or other suitable appliances, and that said animals were injured by reason of such failure.” — 501 — The' action of tbe court in sustaining a demurrer to this plea is assigned as error. It is not doubted that it is permissible for a contract for the shipment of live stock to put upon the.shipper the duty of guarding against such risks as the stock would be exposed to by a lack of proper bedding in the car. This duty is one which is not necessarily assumed by the carrier, but, like the duties .of loading and unloading the stock, and of watering, feeding, and caring for them on the journey, may appropriately be undertaken by the shipper. — South & North Ala. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; East Tennessee, Va. & Ga. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; Central R. & Banking Co. v. Smitha & Chastain, 85 Ala. 47, 4 South. 708; Stiles v. Louisville & Nashville R. R. Co., 130 Am. St. Rep. 429, 446, note; 4 Elliott on Railroads, § 1553. An obvious purpose of. such a provision is that the animals be given a more secure footing than they would have if the floor of the car was left bare and liable to become smooth and slippery by the uses to which it is to be put. But it is suggested in the argument of the counsellor the appellee that the stipulation set out in the plea is invalid, because it undertakes to make the shipper guar.' antee that the animals would stand securely on their feet while in the car, no matter to what violent shocks or rough usage they might be exposed by a negligent handling of the train. We are not of opinion that such a meaning can fairly be imputed to the provision. Its terms do not suggest that it was any part of its purpose to. relieve the carrier. of responsibility for the breach of any duty with which it remained chargeable. It does not purport to cast upon the shipper anything more than the risk- of such loss or damage as may be traceable, not to the negligence of the carrier, but to the lack of bedding in the car, or a suitable substitute for — 502 — it. So we do not assent to the suggestion-that the provision is an invalid one. But, under tbe rule prevailing in this state, in order for the carrier to sustain a claim that it is exempt from liability by virtue of such a provision in the shipping contract, it is not enough for it to show that the shipper’s neglect to take the precaution stipulated for on his part contributed to the injury complained of; but it must go further and show that its own negligence did not contribute to that, result. “If a special contract is made and a loss or injury occurs, the carrier cannot claim exemption'from liability, unless- he. shows, not only that- the cause of the loss or injury was within the limitation of the contract, but that it was without negligence on his part.” — South & North Ala. R. Co. v. Henlein, supra; Central of Georgia R. Co. v. Burton, 165 Ala. 423, 51 South. 643; Chicago, etc., Ry. Co. v. Calumet, etc., Farm, 194 Ill. 9, 61 N. E. 1095, 88 Am. St. Rep. 68, 122. It follows that a plea which assigns as a cause of the injury complained of the shipper’s failure to take a precaution which his contract with the carrier made incumbent upon him, but does not negative the conclusion that negligence on the part of the carrier also contributed to that result, shows less than is required to be shown to entitle the carrier to the exemption from liability for which it contracted. As this fault in the plea was pointed out by the demurrer to it, the conclusion is that the court did not err in sustaining that demurrer. Similar considerations lead to the conclusion that the court did not err in sustaining the demurrer to plea A. To the plea setting up the failure of the owner or person in charge of the stock to comply with the stipulation in the shipping contract requiring a written notice — 503 — to the carrier of a claim to damages for loss or injury to the stock, the plaintiff filed a special replication, which averred, in effect, that, within the time allowed by the stipulation for the giving of snch notice, the plaintiff’s agent made claim upon the defendant and offered to compromise the claim, and that the defendant declined to entertain the offer, claimed that it was not liable for any damage, ‘ and that the plaintiff had no contract with it, but that his contract was with another railroad. The averments of the replication fairly import that the defendant, when informed of a claim in behalf of the plaintiff, disavowed any liability to him, not on the ground that its liability was subject to a condition which had not been complied with, but on the ground that the plaintiff had no contract under which it could be held. A denial by the defendant of any right of the plaintiff to look to it for damages for a loss: complained of was inconsistent with an intention on its part to recognize its contractual liability to him' if a stipulated ■ condition was complied with, and was a waiver by it of a compliance with such condition. — Hudson v. Northern Pacific Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Western Assurance Co. v. McAlpin, 23 Ind. App. 220, 55 N. E. 119, 77 Am. St. Rep. 423; 4 Elliott on Railroads, § 1514; Bishop on Contracts, § 792. Several of the grounds of the demurrer to the replication imply that the stipulation as to notice set out in the plea had such effect that the owner of the stock, in making a claim against the carrier., Could act only in person, or through another who was in charge of the stock, and could deal only with an officer or agent of the carrier to whom the notice in such case was required to be given. That stipulation was for the benefit of the carrier. There is nothing in it purporting to affect the carrier’s right to deal with the — 504 — shipper or his authorized representative, in reference to the. subject of the shipment, through any agent having authority to. bind it in the premises. The averments of the replication are plainly to the effect that the denial of liability was by the defendant, which certainly imports action binding upon it. — United States Life Insurance Co. v. Lesser, 126 Ala. 568, 28 South. 646; Johnson v. Aetna Insurance Co., 107 Am. St. Rep. 92, 104, note. . We are not of opinion that the replication was subject to demurrer on either of the grounds assigned. A judgment of reversal was heretofore rendered in this case, which was based upon the conclusion, then expressed, that there was an absence of evidence tending to show that a person with whom the plaintiff’s witness Neal stated that he had a conversation after the arrival of the cattle at their destination was an agent of the .defendant having authority, real or apparent, to represent or speak for it in the matter of a claim by the plaintiff for loss of or injury to the cattle; and that, because of the absence of such evidence, there was error in admitting, over objection, testimony as to what was said by such person on that occasion. On a reconsideration of the. evidence in the case, we have reached the conclusion that the error of the court in admitting the testimony referred to, without first requiring proof of such person’s agency, was cured by evidence subsequently introduced, which had a tendency to prove that he was an agent of the defendant having authority to represent or speak for it in the matter of the claim made by the plaintiff, and to waive or dispense with the requirement of the shipping contract as to written notice to the carrier. It follows that the disposition of the case heretofore made by this court cannot be sustained on the ground then assigned. — 505 — It became: a- question in tbe trial whether :injnries claimed to have been sustained by the cattle were in; flicted while, they were in the possession of the initial carrier, or after they were, delivered to the defendant, which was.the terminal carrier. If it was and had been the general .practice of the defendant in the conduct of its business, when the initial carrier tendered to it, as the connecting carrier, .a car of cattle, not to receive it without making an objection if any of the cattle were injured, it cannot be said that its acceptance of the car load of cattle without making any objection was without a tendency to support an inference, that the cattle, when received by .it, had not sustained apparent injuries. We are not of opinion that the court committed reversible error in its rulings in this connection. Such evidence may be of little probative value, and may be effectually rebutted by affirmative testimony' having a contrary tendency. The question of its weight is one for the jury, under appropriate instructions of the court as to their duties in passing on the evidence submitted to them. We find nothing of which the appellant properly can complain in other rulings, on evidence, which are mentioned in the argument of the counsel for the appellant. On the issue joined on plea 2, .the burden was on the defendant to prove that the contract - under which the cattle were transported contained the stipulation set out in that plea. Under the evidence in the case, the question as to whether the averments of that plea were proved was one for the jury; a finding that they were proved being dependent upon the jury’s belief in the truth of testimony offered by the defendant, which tended to prove that a paper offered in evidence by it was a copy of that contract. In this condition of the evidence, the trial court cannot be put in error for re — 506 — fusing to give- a. charge involving the assumption that that paper was a correct copy of the contract under which the cattle were transported. The refusal of the court to give written charges 1, 2, 13, 16, and 18, requested by the defendant, may be justified by the fact that each of those charges involved the assumption that the contract under which the cattle were transported contained the stipulation as to notice set out in plea 2. The proposition embodied in charges 8 and 9, requested by the defendant, were substantially covered by written charges given at its' request. A similar statement is applicablé to refused charge 7. Besides, that charge' hypothesizes, the jury’s belief in the existence Of a fact of which we find no evidence in the bill of exceptions. • Written charge' 12, requested by the defendant, was properly refused, as -it involved the untenable proposition that the existence of such a contract as the evidence tended, to prove had the effect' of depriving the carrier of the right, by the act of its duly authorized representative, other than one of its officers or its station agent nearest to the stockyards, to waive the requirement as to written notice being given of a claim for damages for loss or injury to the stock transported. What has been "said disposes of the contentions raised on the record, which have been sought to be sustained by argument. A reconsideration of the record has brought us to the conclusion that it shows no reversible error. Affirmed.