McCarthy v. Louisville & Nashville Railroad

102 Ala. 193

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

McCLELLAN. J.

Appellants are plaintiffs and appellee is the defendant in this action. The complaint contains four counts. It is conceded by counsel on either hand that the third count presents the case relied on by-plaintiffs, and. that upon that count alone the trial was had. The case made thereby is the following : In October, 1890, the Pioneer Fire Proof Construction Company delivered to the Chicago, Burlington & Quincy Railroad Company, at Ottowa, Illinois, four car loads of terra cotta for carriage, and consigned to plaintiffs at Birmingham, Alabama. The defendant was also a common carrier operating a connecting line of railway on the route from Ottawa to Birmingham, and as such received the consignment from the initial carrier, “and undertook to deliver the same to plaintiffs at Birmingham for a reward.” This undertaking was not performed, the complaint avers, but to the contrary, the defendant “did not deliver all of said goods to them [the plaintiffs] , and did not deliver said goods to the plaintiffs in good or proper condition, or in the condition they were in when shipped and consigned to plaintiffs, but that said goods when delivered were badly broken and injured, and a large part thereof rendered wholly unfit for use. ’ ’ The damage to the goods is laid at four hundred dollars, which the complaint seeks to recover.

It is manifest that the case made by the averment of these facts tendered no issue of negligence vel non on the part of the defendant. The contract averred is an unconditional common law contract of carriage without reservations or exceptions. By its terms the defendant insured the safe delivery of the goods to the consignee, and assumed liability for any loss or injury resulting from any cause except such as afforded the carrier a defense at common law. The strictest proof of all possible care on the part of the carrier in the transportation and delivery of the goods would have been no defense, and, of course, proof of the carrier’s negligence was in nowise essential to a recovery. The defenses, which a carrier under such a contract may interpose to an action.for failure to deliver in good condition, are commonly mentioned as two only, namely, that the loss or injury was due either to the act of God, or to the act of a public enemy. But there is in reality a third resting on the fault of the owner of the goods or his agent. This latter defense, while the fault involved in it may consist merely of negligence imputable to the plaintiffs, is in no sense, and bears little analogy to, the defense of contributory negligence, available in actions against common carriers of passengers, sometimes in actions against carriers of live stock, and even, it may be, in actions against carriers of goods — inanimate things — under contracts of affreightment, which limit liabililtv to loss or injury occasioned by the carrier’s negligence. Nowhere in the books can any reference be found to the defense of contributory negligence against the common law liability of common carriers of goods. And in the nature of things there can be no such defense, to speak with any approach to legal accuracy. There must always be negligence on the part of a defendant or else it can not be said that a plaintiff has been guilty of contributory negligence. Or, in other words, “there can be no contributory negligence on the part of a plaintiff, except in cases where there has been negligence on the part of the defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury. ’ ’ 4 Am. & Eng. Encyc. of Law, p. 18. This is illustraed in numerous cases decided by this court, where damages were claimed for the results of wantonness and the like, and pleas of contributory negligence were held bad; and it is illustrated in the case at bar, where the gravamen of the action is a failure to deliver goods, without reference to the inquiry whether the failure was due to defendant’s negligence. To allow a plea of contributory negligence to such action would be to allow the defendant to change the case made by the complaint, by confessing a fact which is not averred in it, and which is not necessary to the plaintiff’s recovery, and then to escape on proof of a fact which is a defense only against the case he has thus made for the plaintiffs. There is no room in this case for the plea of contributory negligence. The special pleas 6, 7 and 8 filed by the defendant were pleas of this character. They charge that plaintiffs themselves were guilty of negligence in that they or their agents improperly and negligently loaded the terra cotta on the cars in whch it was to be and was carried from Ottawa to Birmingham, and that such improper loading proximately contributed to the alleged injury complained of. This was to say, that the defendant was guilty of negligence, but that it ought not to be held liable for the consequences thereof because its negligence was aided to the damnifying result — was contributed to — by the concurring negligence of the plaintiffs. These averments, in short, were admissions of negligence on the part of the pleader, coupled with charges of negligence on the part of the plaintiffs. The further averments of these pleas, that the cars were closed when they were received by the defendant from the first carrier, so that the condition of their contents was not visible, and that defendant and its agents did not then know that said cars were improperly loaded, if intended to negative all negligence on the part of the defendant, are repugnant to and inconsistent with the admissions of defendant’s negligence implied in the . allegation that plaintiff’s negligence contributed to the injury. On the other hand, if these further averments are no.t to be taken as negativing all negligence imputable to defendant, and that is probably the true construction of them, the pleas are yet bad, for, as a carrier is liable for loss or injury resulting from the act of God aided by his own negligence, or from the act of a public enemy to which his own fault contributed, so he is liable for any loss or injury which is due to the concurring and contributory negligence of himself and the shipper; and, as when he pleads the act of God or of the public enemy, he must bring himself within these exceptions to the common law rule of liability by averring his own want of concurring negligence, so when he relies upon the other exception to that rule of liability, that which rests upon the fault of the shipper, he must bring himself entirely and perfectly within it by negativing all contributing fault of his own. — Contracts of Carriers, Lawson, pp. 177-8; Steele v. Townsend, 37 Ala. 247; Gray v. Mobile Trade Co., 55 Ala. 387; S. & N. Ala. R. R. Co. v. Henlein, 52 Ala, 606; Louisville & Nashville R. R. Co. v. Touart, 97 Ala. 514; Angelí on Carriers, § 202; Hutchinson on Carriers, § 766. The rule governing this class of cases can not be more perspicuously stated, perhaps, than by comparing it with and differentuating it from the doctrine which obtains in respect of causes of action resting primarily on defendant’s negligence in the carriage of persons. In these latter cases the contributory negligence of the plaintiff neutralizes and renders innocuous the causal negligence of the defendant, and destroys a cause of action resting upon it. But in the other class of cases, that to which the case at bar belongs, negligence upon either hand is regarded from an entirely different standpoint, and accorded an entirely different and contrary effect and operation, soto speak, on the rights of the parties. The unaided, uncontributed to negligence of the plaintiff producing the injury is a defense, but where there is negligence also on the part of the defendant, without which, notwithstanding plaintiff’s fault, the injury would not have happened, this fault of the defendant neutralizes and eviscerates the negligence of the plaintiff as a ground of defense. In the one case, plaintiff’s contributory negligence destroys the cause of action; in the other, defendant’s concurring negligence destroys the defense.

The evidence tended to show that the goods, for injury to which this action is prosecuted, were improperly and negligently packed or loaded by the consignor, who sold the goods to plaintiffs, and it afforded an inference, or rather room for an inference, that but for this fault of the seller and consignor the injury would not have occurred. But, though the jury had found in line with this tendency of the evidence, and deduced the conclusion therefrom that plaintiffs, or those for whose acts or omissions in the premises plaintiffs were responsible, were at fault, and that such fault had a causal connection with the injury, it was yet their duty to indulge the presumption that the defendant was also negligent in and about the transportation and delivery of the goods, and that this negligence aided plaintiff’s negligence to the result complained of, there being no evidence whatever on the part of the defendant, upon whom the burden in this regard rested, nor indeed any averment, to the contrary. It follows on this state of case, the evidence without conflict showing the injury, and the defendant having failed both in averment and proof to bring itself within the exception under which it in some measure attempted to shield itself from liability, that the jury should have been instructed, as requested in writing, to find for the plaintiffs if they believed the evidence. Upon the same considerations charge 3 requested by plaintiffs should have been given, charges 1 and 2 given for the defendant should have been refused, and defendant’s pleas numbered 6, 7 and 8 should have been held bad. Charge 2 of plaintiffs’ series is abstractly unsound, in that it is open to a reasonable construction whereby its effect would be to hold carriers liable when the loss or injury results from the fault of the shipper co-operating with the act of God or the public enemy. It is not essential to exemption from liability that the damages claimed should have resulted solely from any one of the exceptional causes. If two or all of such causes combine to produce the injury and -the carrier is without fault, he, of course, is not liable.

The only other error we find .in the record lies in the exclusion of the testimony of the witness Slater, to the effect that these cars were “well and carefully loaded.” This was the mere opinion of the witness, it is quite true, but we think a sufficient predicate had been laid to render his opinion on that subject competent evidence.

If the consignor was at fault in the loading of the consignment, the plaintiffs, in our opinion, would be responsible therefor; the fault is imputed to them, the consignor having undertaken to properly load the goods for transportation to them. If the improper loading was apparant, that is, was a fact which addressed itselm to the ordinary observation of the carrier’s servants, or if it wg,s not apparent, but the carrier was yet guilty of negligence, but for which the injury would not have happened, the carrier would be liable notwithstanding the negligence of, or imputable to, the plaintiffs. If the cars used in this transportation were close cars and came to the defendant with their doors closed, so that without opening the doors the condition of their contents could not be seen, we should say the improper loading, if they were indeed improperly loaded, was not apparent within the meaning of the rule we have stated; in such case -there would be, we think, no duty on the connecting carrier to open the cars and inspect their contents, which were not of a character to require such attention, assuming proper loading in the first instance. Whether these cars were open or close cars, and if the latter, whether they were in fact closed when they came to defendant’s road and while being transported over it, was not made to appear in the evidence adduced on the trial.

What we have said will, it is thought, he sufficient for the guidance of the lower court on another trial.

Reversed and remanded.