117 Ga. 832 | Ga. | 1903
An action for damages was brought by D. W. James against the Central of Georgia Railway Company, the plaintiff alleging in his petition that on December 27,1900, he delivered to the defendant carrier, in the city of Atlanta, a car-load of mules to be shipped over its line to Blakely, Ga.; that while the mules were in transit, one of them “kicked through the door of the car in which they were being so transported, and was unable to draw its foot back, and, although the foot of said mule was fully exposed to view to the servants and agents of said company passing by and around said car, the said mule remained in the condition aforesaid until the same was delivered to the petitioner in Blakely,” and within four days thereafter died from the injuries it received. The company was charged with negligence in that it failed “to provide a car with a sound and suitable door and one sufficiently thick and strong to have avoided injury by the stock to themselves,” and also with neglect in not giving attention to the mule after it had so caught its foot and had fallen in a helpless condition upon the floor of the car. The company set up the defense that the carload of mules had been shipped at a reduced rate of freight under a special contract by the terms of which it was absolved from all liability to account to the plaintiff for the value of the mule which had been injured in transit. He subsequently amended his petition by alleging that “ the freight was not agreed upon nor paid until after the said mules had arrived in Blakely, the end of their destination.” The case was tried upon the issue thus raised, the trial resulting in a verdict for the plaintiff. The company made a motion for a new trial, based on divers grounds; but its motion was overruled, and it excepted.
On the argument here, counsel for the plaintiff in error cited and relied on the case of Atlanta & West Point R. Co. v. Texas Grate Co., 81 Ga. 602, as sustaining his contention that the testimony objected to was not, in view of the pleadings filed by James, admissible. In that case it appeared that the Texas Grate Company brought suit in the capacity of a consignee to recover damages alleged to have grown out of a failure by the railroad company to
The contract under which the stock was shipped was evidenced by a writing which purported to be signed not only by “ The Brady-Miller F. & S. Stables, owner or shipper,” but by D. W. James as the person “ actually in charge of the stock.” The plaintiff testified he gave no one authority to sign his name to the contract, but admitted that he was furnished with either the original or a copy of it before he left Atlanta for Blakely, and accepted and used a pass which the company had issued in his name, agreeably to the terms of the writing, in order that he might take passage on the train transporting the mules and take charge of and care for them during the journey. In this connection the trial judge charged the jury: “You will first see if there was any special contract of carriage between the parties, and whether Mr. James, the plaintiff, signed that contract or authorized any one to do so for him. If he made no special contract, then the liability of defendant as common carrier,would be the ordinary liability of such carriers, accord
Judgment reversed.