Calhoon, J.,
delivered the opinion of the court.
If on the trial there had been a verdict for plaintiff it could not properly be sustained. In moving a large train of freight a railway company must not chance the lives of its operatives and others on it, and the immense property interests it was transporting, to save some perishable fruit. If it had, and disaster had resulted, it would have been liable, of course, and, perhaps, criminally so. The fact that operatives went with an engine over the track to see to safety and repair damages is to their credit, but in no way affects the propriety of delaying the movement of the main train until the safety of such action was reasonably assured.
We approve and adopt the conclusions of law and fact arrived at in the very conservative and lucid written opinion of the special judge presiding below, and request the reporter to set it out at length in the report of the case.
Affirmed.
The opinion of-the special judge is as follows:
Brame, Special Judge.
On March 26, 1901, the plaintiff shipped from Mobile, Ala., Over the line of the Mobile & Ohio Bailroad to Meridian a car [51]*51load of bananas destined for Jackson, Miss., on defendant’s road. Tbe freight train of defendant to which this car was attached left Meridian on the morning of the 27th, and was brought over the defendant’s road to Brandon, which is fifteen miles east of Jackson, the latter place being ninety-five miles from Meridian. On that day, which was Thursday, there were unprecedented rains, which caused overflows and washouts at different places on the line of defendant’s road. One was- at Ohunky, not far west o-f Meridian; one was near Bolton, west of Jackson; and the track was overflowed and washed out of line at two places east of Jackson — -that is to say, between Pearson Station and Brandon. By reason of these washouts, the train, of which the car of bananas was a part, was put on a side track at Brandon Thursday afternoon, the 27th, and the locomotive was sent back eastward, presumably for the purpose of aiding and assisting in repairing the break at Ohunky. This train remained at Brandon from Thursday afternoon, the 27th, until Saturday, the 29th, when a locomotive was sent from -Jackson and the train was brought over, leaving Brandon at 12:40 p.m. and reaching Jackson at 2 o’clock. The plaintiff’s evidence shows that by reason of the delay the bananas, which were just turning ripe at the time of being shipped from Mobile, were injured, and he was damaged. The question in the ease is whether the defendant company is liable for the damages occasioned by the delay of nearly two days.
It is well established that a common carrier transporting freight is an insurer, and is only excused from liability for failing to transport by reason of the act of Grod, or the public enemy, or the conduct of the shipper. • In this case the plaintiff accompanied the car, and his testimony tends to show that the defendant was without sufficient excuse for delaying the transportation of the car, but manifestly his statements are based largely, if not entirely, on opinion.
The evidence tends to show that the washouts, or injury, to the track between Pearson and Brandon were occasioned by the [52]*52unprecedented floods and that work was done on two different sections of the track that had been 'Overflowed on- Thursday and Friday. The evidence is not clear as to what time on Friday the track was put in condition for use, but it tends to show that the track was being worked on or repaired as late as Friday afternoon, though there are some inferences to show that it was repaired Friday morning. If the evidence stopped here, it would, I think, justify the inference that the defendant could reasonably have brought the ear over from Brandon to Jackson late on Friday, or, at least, early on Saturday morning, and as the plaintiff’s evidence shows, or tends to show, that his damages were increased by his not having gotten the car to Jackson Friday evening or Saturday morning early, the plaintiff would be entitled to recover. At any rate, he would be entitled to have the case submitted to the jury, the burden of proof being upon the defendant to show that it exercised due care to transport the car within a reasonable time after the track was in proper .condition, and the question as to what is reasonable time, being one of fact, for the jury. But the undisputed testimony of Mr. Bonds, the train dispatcher, who had control of the movements of all trains on the road, is to the effect that no train could go east of Jackson to Brandon before Saturday, and that on Saturday morning a locomotive was sent over and brought the train to Jackson as soon as this could be done, this being the first train that was run over this section of the road after the track between Brandon and Jackson had been repaired. This witness was not cross-examined, and, therefore, his statement went to the jury unchallenged. It is contended by plaintiff’s counsel that his statement in this regard gave merely an opinion, but I do not think so. It is well-known that a train dispatcher directs and controls the movements of all trains. He is in close contact with every part of the road, and is supposed to know, not only the condition of the track, but the location of locomotives and trains and other facts which will enable him to speak authoritatively in saying that a [53]*53train was moved as soon as it conld have been moved. As the witness was not cross-examined and asked as to his means of knowledge, or as to the particular facts upon which he based his statements that the car ivas brought to Jackson at the first opportunity, I think it must be assumed, as there is no evidence to the contrary, that his testimony as to this substantive fact is true. It is true there is some room for contention that the testimony of the men who worked on the different sections was to the effect that the track was put in repair on Friday, and that as these men were on the ground, they knew the facts as to- this. But this is hardly a contradiction of the statements of the train dispatcher. His statements had relation not only to the condition of the track, but the location of cars and locomotives, the position of the different crews, and other particulars, which would enable him to state as a fact that the car was brought to Jackson as soon as possible. By cross-examination the plaintiff’s counsel might have been able to show that he was mistaken as to some of these things, but as there was no cross-examination, and as the .statement is not in itself unreasonable and the witness is not contradicted, I think the court is bound to assume that it is true At any rate, the margin for dispute or con-controversy is so narrow that I do not think that the supreme court would permit a verdict for the plaintiff .to stand if one should be rendered on the testimony in the case, and, therefore, it is my view that the peremptory instruction to find for the defendant was proper.
From the fact that a work train went through from Brandon to Jackson Thursday night and another Friday morning, I do not think it can be deduced that the railroad was negligent in not sending the freight train through under similar circumstances. It was shown that it was a hazardous thing for the work trains to go through the water and over the track before the subsidance of the flood and before the track had been put in repairs.
It might have been commendable for the employes of the [54]
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Calhoon, J.,
delivered the opinion of the court.
If on the trial there had been a verdict for plaintiff it could not properly be sustained. In moving a large train of freight a railway company must not chance the lives of its operatives and others on it, and the immense property interests it was transporting, to save some perishable fruit. If it had, and disaster had resulted, it would have been liable, of course, and, perhaps, criminally so. The fact that operatives went with an engine over the track to see to safety and repair damages is to their credit, but in no way affects the propriety of delaying the movement of the main train until the safety of such action was reasonably assured.
We approve and adopt the conclusions of law and fact arrived at in the very conservative and lucid written opinion of the special judge presiding below, and request the reporter to set it out at length in the report of the case.
Affirmed.
The opinion of-the special judge is as follows:
Brame, Special Judge.
On March 26, 1901, the plaintiff shipped from Mobile, Ala., Over the line of the Mobile & Ohio Bailroad to Meridian a car [51]*51load of bananas destined for Jackson, Miss., on defendant’s road. Tbe freight train of defendant to which this car was attached left Meridian on the morning of the 27th, and was brought over the defendant’s road to Brandon, which is fifteen miles east of Jackson, the latter place being ninety-five miles from Meridian. On that day, which was Thursday, there were unprecedented rains, which caused overflows and washouts at different places on the line of defendant’s road. One was- at Ohunky, not far west o-f Meridian; one was near Bolton, west of Jackson; and the track was overflowed and washed out of line at two places east of Jackson — -that is to say, between Pearson Station and Brandon. By reason of these washouts, the train, of which the car of bananas was a part, was put on a side track at Brandon Thursday afternoon, the 27th, and the locomotive was sent back eastward, presumably for the purpose of aiding and assisting in repairing the break at Ohunky. This train remained at Brandon from Thursday afternoon, the 27th, until Saturday, the 29th, when a locomotive was sent from -Jackson and the train was brought over, leaving Brandon at 12:40 p.m. and reaching Jackson at 2 o’clock. The plaintiff’s evidence shows that by reason of the delay the bananas, which were just turning ripe at the time of being shipped from Mobile, were injured, and he was damaged. The question in the ease is whether the defendant company is liable for the damages occasioned by the delay of nearly two days.
It is well established that a common carrier transporting freight is an insurer, and is only excused from liability for failing to transport by reason of the act of Grod, or the public enemy, or the conduct of the shipper. • In this case the plaintiff accompanied the car, and his testimony tends to show that the defendant was without sufficient excuse for delaying the transportation of the car, but manifestly his statements are based largely, if not entirely, on opinion.
The evidence tends to show that the washouts, or injury, to the track between Pearson and Brandon were occasioned by the [52]*52unprecedented floods and that work was done on two different sections of the track that had been 'Overflowed on- Thursday and Friday. The evidence is not clear as to what time on Friday the track was put in condition for use, but it tends to show that the track was being worked on or repaired as late as Friday afternoon, though there are some inferences to show that it was repaired Friday morning. If the evidence stopped here, it would, I think, justify the inference that the defendant could reasonably have brought the ear over from Brandon to Jackson late on Friday, or, at least, early on Saturday morning, and as the plaintiff’s evidence shows, or tends to show, that his damages were increased by his not having gotten the car to Jackson Friday evening or Saturday morning early, the plaintiff would be entitled to recover. At any rate, he would be entitled to have the case submitted to the jury, the burden of proof being upon the defendant to show that it exercised due care to transport the car within a reasonable time after the track was in proper .condition, and the question as to what is reasonable time, being one of fact, for the jury. But the undisputed testimony of Mr. Bonds, the train dispatcher, who had control of the movements of all trains on the road, is to the effect that no train could go east of Jackson to Brandon before Saturday, and that on Saturday morning a locomotive was sent over and brought the train to Jackson as soon as this could be done, this being the first train that was run over this section of the road after the track between Brandon and Jackson had been repaired. This witness was not cross-examined, and, therefore, his statement went to the jury unchallenged. It is contended by plaintiff’s counsel that his statement in this regard gave merely an opinion, but I do not think so. It is well-known that a train dispatcher directs and controls the movements of all trains. He is in close contact with every part of the road, and is supposed to know, not only the condition of the track, but the location of locomotives and trains and other facts which will enable him to speak authoritatively in saying that a [53]*53train was moved as soon as it conld have been moved. As the witness was not cross-examined and asked as to his means of knowledge, or as to the particular facts upon which he based his statements that the car ivas brought to Jackson at the first opportunity, I think it must be assumed, as there is no evidence to the contrary, that his testimony as to this substantive fact is true. It is true there is some room for contention that the testimony of the men who worked on the different sections was to the effect that the track was put in repair on Friday, and that as these men were on the ground, they knew the facts as to- this. But this is hardly a contradiction of the statements of the train dispatcher. His statements had relation not only to the condition of the track, but the location of cars and locomotives, the position of the different crews, and other particulars, which would enable him to state as a fact that the car was brought to Jackson as soon as possible. By cross-examination the plaintiff’s counsel might have been able to show that he was mistaken as to some of these things, but as there was no cross-examination, and as the .statement is not in itself unreasonable and the witness is not contradicted, I think the court is bound to assume that it is true At any rate, the margin for dispute or con-controversy is so narrow that I do not think that the supreme court would permit a verdict for the plaintiff .to stand if one should be rendered on the testimony in the case, and, therefore, it is my view that the peremptory instruction to find for the defendant was proper.
From the fact that a work train went through from Brandon to Jackson Thursday night and another Friday morning, I do not think it can be deduced that the railroad was negligent in not sending the freight train through under similar circumstances. It was shown that it was a hazardous thing for the work trains to go through the water and over the track before the subsidance of the flood and before the track had been put in repairs.
It might have been commendable for the employes of the [54]*54railroad to take this risk with the work train, bnt I do not think that the defendant conld be expected or required to take any such risk with a freight or passenger train,^ especially as the latter are shown to have been heavier than work trains.
The question is this case is a narrow one. I am fully aware of the rule that ordinarily all questions of fact are for the jury, and that if there is any evidence fairly tending to support the plaintiff’s case, he is entitled to a judgment of twelve men, but in view of the facts of this case, I do not believe that a verdict for the plaintiff could be permitted to stand.
In Empire Co. v. Philadelphia, etc., Iron Co., 35 L. R. A., p. 624, and note 3, it is said:
“The reasons which led to the adoption of the common law rule that makes a carrier an insurer of the goods which it transports, except when lost by an act of God or of the public enemy do not apply to the mere delay in transportation when the goods are actually delivered. The strictness of the rule which was adopted, to preclude collusion between the carrier and robbers, has no application where the mere time of the carriage is concerned. Gulf, C. & S. F. R. R. Co. v. Levi, 76 Tex., 337; 8 L. R. A., 323.
“For delay in receiving and carrying goods the carrier is not liable as an insurer, and is bound by the general rule of liability for a breach of his contract or by his public duty as a carrier, and may be excused for delay in receiving the goods, or in trans-. porting them after they have been received whenever the delay is necessarily caused by unforeseen disaster which human prudence cannot provide against, or by accident not caused by the negligence of the carrier, or by thieves or robbers or an uncontrollable mob. Pittsburgh, C. & St. L. R. R. Co. v. Hollowell, 65 Ind., 188; 32 Am. Rep., 63.”
I think this expresses the correct rule of law as applicable to the defendant in its duty to transport the car in question after the break and when the track had been put in repair. Having these views, I am constrained to overrule the motion for a new trial.