4 Ga. App. 519 | Ga. Ct. App. | 1908
The suit was for damages to live-stock shipped under the usual form of signed special contract. The company was to furnish the shipper transportation, on the train with the stock, and he assumed certain duties in relation to the stock, which otherwise the carrier should have performed. After about half of the journey was completed, the carrier refused to allow him further passage on the train with the stock; and thus he was prevented from accompanying it as required in the contract. Upon the trial he showed these facts, but the court directed a verdict
While this clause of the contract just mentioned has been held to be reasonable and valid (Southern Ry. Co. v. Adams, 115 Ga. 705, 42 S. E. 35), still it may be waived, or rendered unreasonable and unenforceable as to the particular case, by the conduct of the carrier. Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750); Carter v. So. Ry. Co., 3 Ga. App. 35 (5), (59 S. E. 209). If the carrier, in breach of its contract, refused to allow the shipper to accompany the stock, it thereby relieved him from those duties he had assumed, so far as the due performance of them was dependent upon his being present with the shipment throughput the journey. It was a jury question as to whether the carrier, by refusing the 'shipper transportation on the freight train and by unloading the stock into his agent’s pens before he had time to inspeet them, did not waive or render unreasonable in the particular case this clause of the contract. Judgment reversed,.