Columbus & Western Railway Co. v. Kennedy

78 Ga. 646

• Court: Supreme Court of Georgia
• Decided: March 25, 1887
• Status: Published

Opinion

Hall, Justice.

Kennedy instituted his suit against the railway company, upon its liability as carrier, for damages done to certain stock which he had shipped over its road. The special defence set up -to this action was, that Kennedy shipped this stock from Harrodsburg, Ky., under what is usually known as a contract for the shipment of stock, which relieved the company from certain liability in regard to the stock, on consideration of the reduced rates accorded to the shipper, and of his free passage over the road to enable him to attend to the stock in certain respects. The owner accompanied this stock from Harrodsburg to Chattanooga, where he was taken sick and had to lie over. The stock were taken out of the car at Chattanooga, fed and watered, and, as he contends (though that is denied by the company), transferred atChattanooga by the railroad authorities there to another and different car from that in which they were brought from Harrodsburg to Chattanooga. No one accompanied the stock from Chattanooga to Atlanta. Upon reaching the latter point, two of the horses were found to be dead. The balance of them were taken out and carried to a livery-stable in this place, and there fed and watered. The proprietor of that stable sought, as it seems, to forward them upon the original receipt taken ; but to this the Atlanta and West Point Railroad, which connected with the defendant at Opelika, dissented, and requested him to ship the horses in his own name, giving him a contract similar in most respects to that which was first taken ; at least, the variations were very slight. The plaintiff followed his stock. Not finding them in Atlanta, he went around by Macon, and when he reached Columbus, he found that the stock had j ust arrived at that point. Several of the horses were seriously damaged in transportation ; in fact, the whole lot of stock was in bad condition, being bruised and thrown down, etc. He at first refused to accept them at the hands of this company; but, as he says, he was assured by the agent of the company that the company desired him to take them and do the best with them that he could, and that they would aid him in getting compensation for the demage. It appeared from uncontradicted evidence that the stock shipped from Atlanta were in good condition when put aboard of the car on the Atlanta and West Point Railroad.

The jury found a verdict for the plaintiff for the amount of injury done to the stock. The defendant made its motion for new trial upon the general ground, and also on the following special grounds: (1) that there was error in permitting the plaintiff to testify that his understanding was that the stock should come through in the same car in which it was loaded at Harrodsburg, Ky.; (2) because the court erred in admitting the testimony of a livery- stable keeper at Chattanooga, who told the plaintiff that the railroad men at that point had changed the stock to another car; (3) in admitting the testimony of what was said by the agent of transportation of the defendant company at Columbus when the plaintiff applied for his stock. That testimony was in these words: “ When I found the stock so badly bruised and injured, I told Williams, the railroad agent, I did not want to take them. He told me to take them and do the best I could with them, and the railroad company would make it all right.”

1. Whether the understanding of this party as to the car in which this stock was to be shipped through was admissible or not, we are satisfied, under the circumstances of this case, that it was totally immaterial, and could and ought to have had no influence upon this finding. The same thing is true, as to the sayings of this livery-stable keeper at Chattanooga, as to the change of this stock from one car to another. The stock was in good condition when it reached Atlanta and when this new contract of shipment was taken.

2. The objection to the plaintiff’s testimony as to what the defendant’s agent of transportation said to the plaintiff at Columbus, we do not think was well-founded. That is certainly a part of the res gestee appertaining to the transportation of that stock. We do not go so far, however, as to say that the company was bound by the representations of this agent, that it would make this damage good upon compliance by the plaintiff with the condition he mentioned.

3. This leaves us to the consideration only of the propriety of the finding of the jury, which comes up under the general ground of the motion for new trial, that the verdict was contrary to law and evidence. By section 3033 of the code, in cases of injury to person or property, the presumption in all cases is against the company that the injury was the result of their negligence ; and to relieve themselves of this presumption, it is incumbent upon them to show that they were in the exercise of all ordinary and reasonable care and diligence.. This they must do. In this instance it was not done. And this presumption is applicable as well to an action founded upon their general liability, as to one founded on such a contract as that under which they contended these horses were shipped. They showed, from the appearance of the car only, that the train on which these horses were brought to Columbus had not been derailed. They showed how this injury might have happened, but not how it actually happened. It is to be borne in mind that not one of the employés in charge of this train was introduced as a witness on the trial to account for this injury. Certain presumptions of fact arise from the failure to introduce these parties, as has been repeatedly determined by this court, and once very lately. We therefore think that there was a case made out which would authorize, though it did not absolutely demand, this verdict. And we cannot say that there was any abuse of discretion in overruling this motion for new trial, the presumption of negligence arising from the injury not being overcome by the evidence in the case.

Judgment affirmed.