101 Va. 778 | Va. | 1903
delivered the opinion of the court.
The Chesapeake & Western Railroad Company, the terminal carrier, filed its bill to enforce its lien for transportation charges on a car load of horses shipped by appellant, H. G. Herring, from Albany, Tex., to Bridgewater, Va., the amount claimed being $260.50 for transportation charges and $47.75 for feed charges, aggregating $308.25. The Horfolk & Western Railroad Company, the Southern Railroad Company, the Louisville & Hashville Railroad Company, and the Texas & Pacific Railroad Company, all connecting carriers, over whose lines the stock passed, were made defendants along with the appellant.
Appellant filed his answer to the bill, -alleging that he contracted with the Texas Central Railroad Company (the initial carrier, hut not a party to the suit) to transport his stock from Albany, Tex., to Harrisonburg, Va., for the rate of $250.50, and not $260.50, the rate demanded at Bridgewater; that by reason of unjustifiable delay at various points—particularly of four days, or a little more, at Hew Orleans—the stock was exposed to the fury of the unprecedented cold and snowstorm of February, 1899, as a result of which four of his very finest horses died, worth at the very lowest estimation $425, and he had to pay $43 in cash for feed and other things; which damages he claimed the right to set off “against any claim of the Texas Central, the Texas and Pacific, and the Louisville & Hashville Railroad Companies, or either of them, in this cause,” none of which companies were making any claim against which
. This answer, though it did not pray to be treated as a cross-bill, was, in the decree appealed from, so treated as to the Louisville & Nashville Railroad Company, against which company the blame for the delay in sending forward the stock was alleged.
The Louisville & Nashville Railroad Company answered the original bill filed by the Chesapeake & Western Railroad Company, and in its answer also answered the allegations of the answer and cross-bill of appellant, denying the.alleged contract for the transportation of his stock from Albany, Tex., to Harrisonburg, Va., at the rate of $250.50; denying that there was any contract at all for the through shipment of the stock until the contract with the respondent (Louisville & Nashville Railroad Company), exhibited with its answer made at New Orleans, February 7, 1899; denying any blame or responsibility for the alleged delay of four days at New Orleans; and alleging that no damage or injury-was suffered by the stock while on the respondent’s line or in its pens.
Hpon the hearing of the cause on the pleadings, the exhibits therewith, and the depositions of witnesses, the Circuit Court decreed in favor of the Chesapeake & Western Railroad Company against the appellant for the amount of its claim, $308.25, with interest thereon from February 18, 1899, and costs, and dismissed, with costs to the Louisville & Nashville Railroad Company, the cross-bill of the appellant setting up his claim for damages to his stock which he asked to be set off against the interest of the Texas Central, the Texas & Pacific, and the Louisville & Nashville Railroad Companies, or either of them, in the recovery by the Chesapeake & Western Railroad Company in this cause. We are asked to review and reverse the decree in so far as it denied the right of appellant to set off the
* The first question presented is whether or not the amount involved in the appeal is sufficient to confer jurisdiction upon this court. It is true that the appellant, after setting out his damages to he the value of four of his best horses, worth at least $425, and $43 for feed and other things, only adds, “and other damages to the amount of $50 by reason of injury to the horses which did not die;” hut, if this latter claim of damage should be disregarded because- too vaguely made, the claim of damage to the amount of $468 is sufficiently made, and, if appellant was entitled to recover'that amount at all, he was certainly entitled to recover interest thereon from the time his answer and cross-bill was filed at the second April rules, 1899, until paid; and the interest computed on the $468 from that date to the date of the decree appealed from, April 18, 1901, would, together with the $468, amount to more than the sum necessary to confer upon this court jurisdiction.
It appears that the appellant, who was then living in Texas, and desiring to move to Bridgewater, Va., his future home, delivered a car load of horses to the Texas Central Railroad Company at Albany, Tex., on or about January 31, 1899, for shipment to Bridgewater, Va., he to accompany and care for the stock en route, the initial carrier furnishing him free transportation over its line from Albany to Cisco, Tex., where the stock was turned over to the connecting carrier, the Texas & Pacific Railroad Company, which latter carrier delivered the stock at New Orleans on Pebruary 3, 1899. When the stock arrived at New Orleans, the appellant, not having a through rate of freight thereon to Bridgewater, Va., sought to obtain such a rate from the Louisville & Nashville Railroad Company, and upon-being told that the company had no through rates to
It further appears by uneontradicted testimony that when appellant went to the agent of the Louisville & Hashville Railroad Company having in charge at the time the department of the road’s management where contracts for the through shipment of this stock had to be made to see about rates, and this agent told him that he had no through rate to Bridgewater, but would let the stock go forward to some junction point on the line of the Louisville & Hashville Railroad Company to wait there for the rate, appellant refused to go forward, saying he preferred to wait there, where his stock was well cared for, until the rate was obtained. Had this proposal been accepted by appellant, his stock would have reached Calera, Ala., the junction with the Southern Railway, at least two days earlier, which, with the necessary delay at Hew Orleans for feeding and resting, would have about removed the cause of delay in Hew Orleans of which he complains. The appellant, nowhere in his answer and cross-bill, alleges that the stock was injured or weakened by standing in the pens at Hew Orleans, and it is shown in the evidence. that the stock was in good condition when it left the pens of the Louisville & Hashville Railroad Company at Hew Orleans. Ho witness—not even the appellant himself, who was with the stock all the time, as we have said— testifies that the stock had been in the slightest degree injured, damaged, or weakened when it left Hew Orleans. Therefore, it is manifest that the injury to his stock, of which he complains, was not traceable to the delay at Hew Orleans, a part of which was, as we have seen, uncontrollable, and the greater part of which was the result of his own choice.
This brings us to the remaining question—whether or not the Louisville & Hashville Railroad Company can be held liable
“A comm on carrier assumes all risks except those caused by the act of God and the public enemy. One of the instances always mentioned by the elementary writers of loss by the act of God is the case of loss by flood or storm. Now, when it is shown that the damage resulted from this cause, immediately he is excused.” Railroad Company v. Reeves, 10 Wall. 176, 19 L. Ed. 909, and authorities cited, among which is Denny v. N. Y. Cent. R. Co., 13 Gray, 481, 74 Am. Dec. 645. In that case it was shown that the defendants were guilty of a negligent. delay of six days in transportation, by reason of which the sMpment was overtaken by flood in the Hudson river, and for damages resulting to the goods shipped the action was brought, the contention of the plaintiff being that the defendant was liable because of the negligent delay of six days M transportation, whereby the goods were overtaken by the flood; but the court held that, the flood being the proximate cause of the injury, and the delay in transportation the remote cause, the plaintiff was not entitled to recover.
In the examination of the appellant in his own behalf m this case he was -asked: “As I understand your contention in this case, so far as the question of damages is concerned, it is based on the idea that the delay on the route before you struck the storm caused your stock to be exposed to the snowstorm and cold that commenced about the 11th or 12th of February, 1899, as a result of which exposure they contracted- pneumonia
“The law refers an injury to the proximate cause, and not to the remote cause. A man guilty of negligence is not responsible for all the consequences that may or do flow therefrom, -but only for such consequences as a prudent and experienced man, fully acquainted with all the circumstances which in fact exist at the moment, could have foreseen or reasonably anticipated.” Fowlkes v. Southern Ry. Co., 96 Va. 742, 32 S. E. 464; Connells Ex’rs v. C. & O. R. R. Co., 93 Va. 57, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786.
Upon the whole case we are of opinion that the decree appealed from should be affirmed.
Affirmed.