16 Ga. App. 750 | Ga. Ct. App. | 1915
The Capital City Oil Company brought its suit in the city court of Savannah against the Central of Georgia Railway Company for damage to two cars of Istroma horse-feed, shipped by it on the 6th and 7th days of August, 1913, respectively, to its order, “notify C. N. Roberds, of Savannah, Ga.” The goods were shipped from Baton Rouge, Louisiana, on bills of lading issued by the New Orleans, Texas & Mexico Railroad Company. The foodstuff was alleged to have been received by that road sound and in good condition, and it was alleged that the defendant was the “last carrier receiving 'as in good order’ and handling said shipment.” On the arrival of the cars in Savannah on the 14th and 16th of August respectively, the contents of both were found, on examination by Roberds, to be in a badly damaged condition, and were refused by Roberds. The plaintiff was immediately notified of this refusal, and on August 30, after having first paid the freight on the cars, the plaintiff took possession thereof, and found, as alleged, that the damage to the foodstuff was caused by water which had gotten into the ears and had caused the feed to heat and burn to such an extent that it was practically worthless. In order to lessen the damage, however, the plaintiff handled the feed and obtained therefor $540.13, which amount, when deducted from $1,238.90, the value of the feed in Savannah in good condition, left $698.77, the amount for which judgment was asked. The defendant denied the plaintiff’s allegations as to the cause of the damage to the shipment, and pleaded that the damage, if any, was caused by improperly shipping the feed in such condition that it
There was an abundance of testimony, expert and non-expert, both for the plaintiff and for the defendant. The defendant introduced witnesses who testified that the damage could not have been caused by the rain, and that the cars in question (which had been examined by witnesses for both sides with a view to ascertaining the safeness of the cars from rain) would not leak; while the plaintiff had witnesses who testified that the damage was in fact caused by the leaky condition of the cars. It was agreed between the parties that in case the jury found for the plaintiff, the defendant was entitled to a credit of $124.88, which had been pleaded as a set-off and which had arisen out of another transaction, and that, if there was no valid claim against the defendant, the defendant was entitled to a verdict against the plaintiff for this amount. It appeared, from the evidence, that the feed in question is a mixture of alfalfa and various grains, and is sprayed with molasses, and there was testimony to show that such feed would, when packed in bulk, heat and become damaged, and that a shipment in bulb of such feed is considered dangerous on account of fire. The tendency of the feed to overheat and become dangerous, of course, depended upon the condition of the various constituent elements when the feed was mixed, and the amount of moisture contained in such parts. There was evidence in behalf of the plaintiff that shipments similar to the one in question had been made from Baton Bouge to Savannah, and that these shipments, or most of them, had arrived in a safe and sound condition. The jury resolved the question of liability in favor of the railway company, and, in accordance with the agreement between the parties above set out, returned a verdict in favor of the defendant for $124.88; and it is
The motion for a new trial was based upon the usual general grounds and upon the following ground: “Because the court erred in omitting to instruct the jury substantially upon the rule of law applicable to a material issue made by the pleadings and sustained by legal evidence for the plaintiff, that the goods which were the subject-matter of the damage alleged in said case were delivered to the initial carrier in good order, and were so receipted for by such carrier, and the same were damaged by leaky ears while en route to their destination; and that the defendant,.as last connecting carrier, received the goods from the initial carrier and receipted for the same as ‘in good order;’ such rule or principle of law under such facts being that the last connecting carrier is concluded by its receipt of the goods as ‘in good order,’ and shall be responsible to the plaintiff for any damage, open or concealed, done to the goods, and such several connecting carriers shall settle among themselves the question of ultimate liability.” We shall deal first with this exception, for, though the learned counsel for the plaintiff in error does hot directly and specifically refer to this ground in his brief, the substance of the exception is contained in his argument in support of the assignment that the verdict is contrary to the evidence. It is elementary that a common carrier is bound to use extraordinary diligence, and that, in case of loss, the law is against him and no excuse avails unless it was occasioned by the act of God or the public enemy of the State. Civil Code, § 2712. It is equally well settled that for a carrier to avail himself of the defense that loss or damage was caused by the act of God, he must establish not only that the act of God occasioned the loss, but also that his negligence did not contribute to it. Civil Code, § 2713. Way v. Southern Railway Co., 132 Ga. 679 (64 S. E. 1066). Injury from inherent qualities is somewhat in the nature of damages resulting from the act of God; and in the more recent development of the rules as to the liability of carriers it has been held that they are not liable for loss or damage due to the intrinsic qualities of the goods carried. Ohlen v. A. & W. P. R. Co., 2 Ga. App. 328 (58 S. E. 511). See also Forrester v. Georgia Railroad &c. Co., 92 Ga. 699, 704 (19 S. E. 811); Susong v. Florida Central & Peninsular Railroad Co., 115 Ga. 361, 363 (41 S. E. 566). When the goods composing
The evidence was strongly in conflict upon the controlling issue to which we have referred. But the preponderance does not necessarily lie with the greater number of witness. The opinions of witnesses, both expert and non-expert, may be given just such weight as the jury sees fit to accord them, and there was testimony of at least one witness that even if the car leaked, the water would not have contributed to the damage, and that in his opinion the damage was due solely to the inherent character of the foodstuff in question. The jury having resolved the issue of credibility in favor of the testimony for the defendant, and the trial judge having approved their finding, this court will not interfere with the exercise of his discretion. Judgment affirmed.