Louisville & Nashville R. R. v. Lynne

Injury to Goods. 1. Carriers; Goods; Connecting Carrier. — The Carmack Amendment (U. S. Comp. Stat. 1913, § 8592) does not abrogate or impair the separate liability of terminal or delivering carriers for losses occurring on their own lines, as fixed by state statutes or decisions. 2. Same; Connecting; Burden of Proof. — Where the action is against a terminal carrier for loss of goods, the burden is on plaintiff to show that his goods were lost or diverted while in the custody of defendant. 3. Same. — Where it is shown that defendant railroad delivered to plaintiff a part of the orignal shipment, the presumption arises of its receipt by defendant railroad in the same condition as when delivered to the initial carrier and imposes upon defendant railroad the burden of showing that the missing goods were not lost while in its custody. 4. Same; Hearsay. — In such a case the declaration of a depot agent that the goods were short, and would arrive, is but hearsay, and not a verbal declaration within the scope of duty then being performed. 5. Same; Evidence. — Where the clerk did not see the car opened his testimony that at the point of delivery to defendant the car was found short of the goods complained of, was not sufficient to overcome a presumption that the missing goods came into defendant’s possession. 6. Same. — Where the suit was for loss of goods by a carrier, the admission in evidence of the declaration of a depot agent that the goods were short, and would arrive, while technically erronous was not prejudicial to a reversal.

Appeal from Morgan Circuit, Court. Heard before Hon. D. W, SPEAKE. Action by W. E. Lynne against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 449. The plaintiff shipped 20 cases of dry goods from New York City to himself as consignee at Hartselle, Ala. The initial carrier was a steamship line which delivered the goods to the Southern Railway Company at Charleston, S. C., and it in turn delivered the shipment to defendant in a sealed car at Montgomery. From this point the car, with its seal unbroken was carried to Birmingham by the defendant, where the seal was broken, parts of the contents removed, other goods loaded to complete the carload, the car resealed, and thence carried by defendant to Hartselle. At this point the shipment was delivered to plaintiff as consignee. One Reader, checking agent of defendant at Birmingham, testified that when the car was opened at Birmingham he checked over this shipment, and found it short one case of dry goods, and found another case recoopered. This shortage and condition was noted by him on.the waybill issued by him for defendant when the shipment was checked and sent on its way to Hartselle. Nineteen cases, included the recoopered case, were delivered to plaintiff, and he found the recoopered case short a large part of its original contents. Plaintiff introduced in evidence the steamship’s bill of lading showing receipt and shipment of 20 cases of his goods. The defendant introduced in evidence the waybill issued by the Southern Railway, showing receipt and transhipment over its lines of these same 20 cases from Charleston to Birmingham. Defendant also introduced its own waybill from Birmingham to Hartselle, indorsed with the notation of shortage and condition as above stated, which wás verified by the testimony of the checking agent. The defendant objected to the introduction in evidence of the steamship bill of lading on the ground that it was not signed by the carrier, and was not shown to be genuine, and the objection was overruled. Defendant also objected to the testimony of plaintiff that he told defendant’s agent at Hartselle that “I would' have to bring suit for the 'goods, and he requested me to wait a few" days, maybe he would find it, and to give them a little more time;” and “he mentioned about, the goods-being short, that-they would come the next day-or two.’’; -These objections.-were overruled.' 'The trial judge refused to give the general affirmative charge for defendant, and also a written request to charge the jury thát plaintiff could not recover of this defendant for the lost case. The following charges were also refused to defendant: (1) The initial carrier is liable for the loss of goods when lost upon any road between the point of shipment and delivery, but connecting carriers are only liable for loss proved to have occurred while the goods were in possession of such connecting carrier. (2) If you believe from the evidence that the shipment sued on was an interstate shipment, and that the Clyde Steamship Company was' the initial carrier, of said shipment, and this defendant a connecting or delivering carrier of such shipment, and if you further believe a portion of said shipment was lost, I charge you the Clyde Steamship Company would be liable therefor, and not this defendant.