Central of Georgia Railway Co. v. Jones

43 So. 575, 150 Ala. 379, 1907 Ala. LEXIS 381

Opinion

TYSON, C. J.

This action was' brought by plaintiff to recover the value of a trunk and. its contents, alleged to have been lost by reason of the negligence of defendant’s station agent. 11 is made to ■ appear, • both by the pleading and the proof, that the- trunk was delivered by plaintiff to defendant to-'be transported as • baggage, front-a point in the state of Georgia to Malvern, a station.on its line of road in this state. It was also shown that the trunk arrived at Malvern and was taken in charge by the defendant’s station agent at that point, and that while in his possession it was taken by some one other than plaintiff during the day of its arrival or during the night of that day. -

The point is made that it was the duty of plaintiff to call for his trunk within a reasonable time, and that bis failure to do so until the next morning after its arrival and its taking absolves the defendant from all liability. It may be that it was plaintiff’s duty to call for -his trunk within a reasonable time after its arrival, but bis failure to do so did not absolve the defendant from all liability. His failure may have terminated the defendant’s l’iaiblity as carrier, which was that of an insurer, but that of warehouseman or bailee Avas still extant; and if the trunk Avas lost by reason of the negligence of its station ¿gent,. Avho received it, as alleged in the complaint, the defendant was liable, and proof of its loss raised the presumption of such negligence, ¿nd cast the burden of proof upon the defendant of acquitting itself of negligence.—3 Am. & Eng. Ency. Law (2d Ed.) pp. 750, 751, and note.

The defendant hkving Avholly f¿iled to discharge this burden, the affirmative charge requested by plaintiff Avas properly given.

Affirmed.

Doaameix, Simpson and Anderson, JJ., concur.