Central of Georgia Railway Co. v. Evans

35 Ga. App. 438 | Ga. Ct. App. | 1926

Jenkins, P. J.

Something might be said in elaboration of the third division of the syllabus. As to the first count the plaintiff made out a prima facie case by showing himself to be the lawful holder of the bill of lading; that the goods were received by the defendant for shipment in good condition, and that when delivered by it they were damaged by decay; and that he was damaged thereby to an amount named. In order for the defendant carrier to absolve itself from liability for the damage to the shipment, it then became incumbent upon it to show that the loss was occasioned by an act of God or of the public enemy, unmixed with any negligence on its own part contributing thereto. Where, as here, however, the shipment consisted of perishable goods, the rule just stated is complied with by showing that the loss was occasioned by an inherent vice in the goods themselves or by their ■natural deterioration, unmixed with contributory negligence on the part of the defendant. The defendant, contending all the while that the goods were properly handled, including proper refrigeration, apparently does not undertake to show that their decay, while thus properly refrigerated, was attributable to mere natural deterioration, but relies upon proof to the effect that the loss to the properly handled and properly refrigerated shipment was occasioned by a certain named vice or disease inherent in the goods at the time of their shipment. In undertaking to absolve itself from contributory negligence in the loss thus occasioned, the defendant submitted proof for the purpose of showing, and did show, that the shipment of peaches was handled with proper expedition and that the refrigerating car in which they were conveyed was re-iced to full capacity at all regular icing stations between the point of shipment and the point of destination, as required by the bill of lading. This, according to the defendant’s contention, was all that it was required to show under its contract of shipment in order to be relieved from the presumption of contributory negligence for a loss which it contends was occasioned by what was the equivalent of an act of God. It nevertheless went further and undertook to prove that the car furnished by it and in which the freight was handled was not only such as was in compliance with plaintiff’s requisition calling for a refrigerator car, but was such a car of that type as was suitable for the character of service specified. The plaintiff, in rebuttal, disputed the existence .of the inherent vice claimed by the defendant to have existed in the goods, and likewise disputed the defendant’s evidence to the effect that standard refrigeration was provided, by showing that such was not the case, since it could not have been afforded by the car furnished, which, according to his evidence, was not the sort of refrigerator car which could or did afford standard refrigeration for the service specified, and consequently was not suited for the service called for, but was a short car, with small ice bunkers, old and antiquated, and which was primarily intended to be used as a dairy car for handling in a limited territory, and was entirely unsuited and inadequate to maintain standard refrigeration on a long haul between Fort Valley, Georgia, and St. Louis, Missouri, when iced only at such icing stations as were regularly provided for. Plaintiff insists, and correctly so, that under the interstate-commerce law the defendant could not contract against liability occasioned by its own negligence, but appears to tacitly concede that, under the evidence, a lack of proper refrigeration could be charged only by reason of the inefficiency of the car employed. Under the tariff rules of the interstate-commerce commission a shipper, in requesting a ear, is only permitted to specify in general terms the type of ear desired, such as “refrigerator, ventilator, box, etc., and the character, of service desired.” It is also true that under these tariff rules (with certain exceptions not material here) “no detailed instructions from shipper as to protective service will be accepted other than hinder refrigeration/ hinder standard ventilation/ etc.” Thus, for a failure to furnish, upon request, a car of the type requested, such for instance as “a refrigerator car,” the rules of the interstate-commerce commission afford the shipper his remedy; but it is nevertheless true that for a failure to furnish a refrigerator car such as would afford proper protection for the character of service specified, the remedy is afforded by the common law; and the carrier is liable under common-law rules and principles for any damage occasioned by its negligence in failing so to do. “It is the primary duty of the common carrier to furnish vehicles suitable in every respect in building strength, and mode of construction, for the safe transportation of the various kinds of property which are usually carried by it, and any failure to observe its duty in this regard will render it liable for loss or injury caused thereby.” 10 C. J. 85. Under the evidence submitted on this issue, it was for the jury to say whether the defendant had carried the burden imposed upon it by showing, as it sought to do, that the loss was brought about by the inherent disease referred to, and, if so, whether it was free from negligence contributing thereto. Upon the first of these propositions, the jury, in determining the existence and effect of such alleged inherent vice, could consider not only the testimony bearing directly upon that question, but might also consider in connection therewith all the surrounding facts and circumstances throwing light -upon such ultimate question by a process of elimination. Upon the second proposition,—that is, the question as to defendant’s negligence,—there was no dispute except as to the .question as to proper refrigeration, and no contention is made as to that, except as to whether the car furnished, when re-iced at all regularly established icing stations, could and did afford the proper amount of protecting refrigeration for the shipment. Under tbe conflict of tbe testimony upon that issue tbe jury were authorized to find that the shipment lacked proper refrigeration on account of tbe inefficiency of tbe ear furnished by tbe. defendant, when re-iced at the ordinary icing stations, between tbe points of shipment, and that tbe furnishing of such an inefficient car constituted negligence contributing to the damage sustained.

Judgment on the first count affirmedj and on the remaining count, designated as No. 8, reversed.

Stephens and Bell, JJ., concur.