4 Ga. App. 94 | Ga. Ct. App. | 1908
Coweta County excepts to the overruling of a ínotion for a new trial. It appears from the record that the plaintiff in error brought suit against the Central of Georgia Itailway Company, to recover as damages $597.44, the value of a convict car or wagon and its contents, burned while on one of the flat-cars of the defendant, as well as $25, the value of a grade plow. Upon the trial the jury returned a verdict in favor of the defendant. The motion for new trial, in addition to the general grounds, assigns error, in the nine grounds of the amended motion, on the rejection and introduction of certain testimony, on certain instructions of the court to the jury, and on the refusal of the court to
We find'no reversible error, either in the rulings of the court upon the testimony or in the instructions to the jury. Summarized, all of the grounds of the motion for new trial presented but two complaints. The first is that the case was not tried upon the theory that the plaintiff was entitled to recover unless the loss was occasioned by the act of God' or the public enemies of the State. The second complaint is that the court judicially determined what constituted negligence under the facts in the case, and thus withdrew from the jury the plaintiff’s contention upon this subject. In every ease the issues are made by the pleadings, and the verdict should be in accordance with the law applicable to the particular facts shown in the testimony. The plaintiff’s petition alleged, that S. S. Nash, as superintendent of Coweta county chain-gang and in behalf of the county, delivered to the railroad company, for transportation from Senoia to Newnan, a certain convict car and its contents; that the agent of the company accepted said car for transportation, and that while in the company’s possession the car was destroyed by fire, without the consent or negligence of the plaintiff, its officers, or employees; and that the failure of the company to deliver the convict car and its contents at Newnan on demand rendered the company liable for its value. In its answer the defendant denied these allegations and set up, as a defense, that if the property of the plaintiff was injured and damaged at the time alleged, it was not due to the fault or negligence of the defendant, its agents or employees. It pleaded, that the destruction of the property was due to the direct act of the agents and employees of the plaintiff, without the knowledge of the defendant or its employees; that the damage, if any, was caused by fire left inside the car by the agents and employees of the plaintiff, without the knowledge of the defendant.
The evidence introduced in support of the pleadings was practically without contradiction as to any material matter. Under the evidence introduced in behalf of the plaintiff itself, the controlling issue in the case was created. It was a question of fact whether the fire which destroyed the car and its contents was inside of the car without the -knowledge of the defendant at the time that the car was delivered to it for shipment. The superin
It is not clear, under the evidence in this case, that the question involved is one purely or wholly of negligence. But if it be viewed as such, it is settled that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the de
Mr: Hale, in his excellent work on Bailments and Carriers (§81, p. 351), adds these qualifications to the rule that shippers are entitled to recover for the loss of their goods, except where the same is caused by the act of God or the public enemies: (1) where the loss is caused by the act of the shipper; (2) where the public authority intervenes; (3) where the inherent nature of the goods shipped must be taken into consideration. On page 365, the principle'to which we have adverted is laid down: “Common carriers are 'not insurers against losses caused by fraud or fault of the shipper.” The statement on page 367, that “a hidden defect in the packing is the act of the shipper, for which the carrier is not responsible,” is also applicable to the undisputed facts in this case, in that it appears that the car which was burned was placed upon the flat car by the employees of the county, with all of the windows fastened and doors locked, so that there was no opportunity for the agent of the company to see, nor any reason for him to suspect,, that there was fire in the car; nor was any means afforded it to know whether the car was packed with this defect hidden therein, nor was he bound to ascertain that there was any fire in it and likely to destroy it. As the agent of the carrier, he had the right to presume that the shipper’s agent and servant would not be guilty of the wrong of requiring the transportation of a shipment which contained within itself the means of its own destruction, — certainly not without at least notifying him to that effect and allowing him to determine whether he was willing to accept for carriage a shipment whose nature was such that the carrier would have the right to decline to accept it for shipment.
(c) The third exception to the charge contained in the 6th ground of the motion for new trial is that it failed to instruct the jury that the plaintiff might recover if the defendant knew or might have known of the existence of the fire in the car. The charge of the court might have been subject to this objection, if the excerpt quoted above had been all that was said by the’court upon the subject. But such is not the case. In several portions of the charge the court called the attention of the jury to the fact that if the railway accepted the car with knowledge of the fact that there was fire therein, it would not be relieved from liability. The court also charged the jury that the company was bound 'to exercise extraordinary diligence; and on the other hand, as to the plaintiff, the court charged as follows: “The absence of such diligence is termed slight neglect. The county would be entitled to recover in that event, provided the company has not shown some legal defense, some legal reason why the plaintiff, in that state of facts, is not entitled to recover.”
The'plaintiff in error insists, in the 8th ground of the motion for new trial, that the effect of the court’s charge therein complained of was-to instruct the jury that if the county left in the stove the fire which caused the burning of the ear, such conduct on the part of the county would be negligence, and that if they
The court also refused to allow Mr. Nash to testify that he directed one of his servants to see that all the fire in the stove was extinguished. This testimony was likewise irrelevant, for the reasons just above stated, and was properly repelled.
If the court erred in admitting the shipping orders, which were drawn up coincidently with the bill of lading, and which, like the bill of lading, were unsigned, the error was corrected by the court in the conclusion of his charge, by an explicit instruction to the jury that the plaintiff was not bound by any of the stipulations in the paper, unless it was signed. As it was.undisputed that neither the bill of lading nor the shipping order was signed, this effectually withdrew that testimony from the jury; and the shipping order does not appear in the brief of evidence in the record. It appears that when the plaintiff’s counsel objected to the introduction of the shipping orders (which were really issued contemporaneously and as a part of the bill of lading, the shipping order being signed b.y the shipper and the bill of lading by the carrier, and the bill of lading having been produced in response to a notice to produce, served by the plaintiff upon the defendant) the judge reserved the decision upon the point; he made no ruling thereon during the trial; and it may, therefore, be considered to have been admitted over the plaintiff’s objection. But “evidence, whether objected to or not, can be as effectually withdrawn by the charge of the court as by a ruling to that effect during the course of the trial.” In a case where, as in the present instance, it was the last instruction to the jury before they retired to consider their verdict, the withdrawal of the evidence in the charge would be more likely to be remembered by the jury than an earlier ruling upon the subject.
The concluding ground of the motion excepts to the charge of the court as a whole, as being confusing and for failing to cover the issues made in the case. We think the charge of the court was clear and easy to be understood, and that the only issues involved were fully and clearly presented. There may be some minor verbal inaccuracies to be detected by a microscopic, grammatical analysis, but these do not afford any legal ground for reversing the judgment refusing a new trial.
Judgment affirmed.