25 Ga. App. 207 | Ga. Ct. App. | 1920
(After stating the foregoing facts.)
The special contract in this case is valid under the laws of Georgia, and the plaintiff is bound by its terms. Georgia Southern & Florida Railway Co. v. Greer, 2 Ga. App. 516 (2), 518 (2) (58 S. E. 782), and cases cited. “The fact that there was in the present case a special contract would not take it out of the rule, that after the plaintiff has proved that the stock were lost or injured while in the possession of the defendants the law would raise a presumption that the defendants were at fault. Such a presumption would in such a case arise, and the burden would then be placed upon the defendants to show that they had exercised the degree of diligence which the contract required. Columbus Railroad Co. v. Kennedy, 78 Ga. 653.” Cooper v. Raleigh & Gaston R. Co., 110 Ga. 664 (36 S. E. 240). What degree of diligence on the part of the defendant was required by the contract ? “ The rule of presumption against the carrier, notwithstanding said special contract, still arose, and the burden was upon the company to rebut this presumption; but the contract diminished the onerous 'character of this burden, for under its terms the carrier was required 'to exercise only slight diligence and was only liable for gross negligence. Columbus R. Co. v. Kennedy [supra]; Cooper v. R. & G. Co. [supra].” Georgia So. Ry. Co. v. Greer, supra. No evidence was introduced by the plaintiff to contradict the evidence of the defendant in reference to the care with which the train was 'handled. Does the evidence show that the railroad has exercised the diligence required of it under the contract,— slight diligence,— and thus rebut the presumption against it? We think so. This being true, the court erred in overruling the motion for new trial.
Judgment reversed.
