15 Ga. App. 759 | Ga. Ct. App. | 1915
W. H. Mitchell & Company brought suit against the Atlanta, • Birmingham & Atlantic Railroad Company and E. T. Lamb, receiver thereof, alleging, that the plaintiffs, on March 25, 1913, delivered to the said railroad company at Thomasville, Georgia, a car-load of turnips, amounting to 2,080 dozen bunches, to
The defendant demurred generally, and also demurred because no copy of the bill of lading and contract of shipment was attached to the petition, though the petition indirectly suggested a contract for icing the vegetables shipped; and further because it was not stated how the value at destination was arrived at, or whether the amount alleged was the net value after deducting charges for transportation, icing, or selling, or was the gross value of the turnips, or how and in what respect and to what extent and at what point along the line of transportation the defendant failed to ice the cars sufficiently. The plaintiffs thereupon amended the petition by alleging that the railroad company’s local agent at Thomasville orally undertook and agreed to keep the cars fully iced, according to custom, as often as necessary to preserve the contents thereof, and received at the same time from the plaintiffs $260 as freight charges on each car. The court then overruled the demurrer, and error is assigned thereon.
We think the court properly overruled the demurrer, since the
Various grounds were urged in the motion for a new trial. Under the special contract of shipment in this case the amount to be recovered in case of loss was the value of the property at the place and time of shipment, and the plaintiff in error insists that there was absolutely no testimony to show what this value was, since the testimony as to value related merely to the market value in Pitts-burg and Chicago. If, however, from the market value of the turnips at Chicago and Pittsburg at the time of the shipment, as shown by the testimony, the freight to each point, added to the entire cost of converting the turnips into cash, be deducted, the resulting bal-ance would show the value of the turnips at the point from which shipment was made. .Certum est quod certum reddi potest. The evidence establishes the value set out in the petition to have been the gross value of each car, and the documentary evidence shows that the freight on the Pittsburg car was $260.40, and the freight on the Chicago car $285.60; and if these amounts be deducted from the gross market value, a net sum of $675.60 for the Pitts-burg car and $620.25 for the Chicago car would result. The court in rendering judgment deducted the further sum of 10 per cent. ■ from the gross value of each shipment, or $93.60 from the Pitts-burg shipment and $90.58 from the Chicago shipment, to cover commission charges for handling, which would have accrued had the goods arrived and been handled in due course. There appears to be no direct testimony authorizing this deduction for commission charges, except the following “note” at the close of the entire
It was insisted that there was no evidence of negligence on the part of the defendant carrier or its connecting lines, and that, since this was an interstate shipment and (according to its contention) no presumption of negligence is created by any act of Congress, there could be no recovery without such proof. There was abundant evidence showing that the turnips were unreasonably delayed and reached their destination several days after they should have arrived. This in itself was sufficient to authorize the conclusion that the carrier had been negligent, unless some legal excuse for the delay was shown.
The further contention, that the judgment was contrary to the evidence to the effect that shipping turnips wet would bring about the defects complained of, it is unnecessary to discuss, since there was some evidence tending to show that the manner in which the turnips were actually packed was the best possible method; and the judge, sitting as a jury, had the right to accept whichever testimony commended itself to him.
To the contention that the evidence in behalf of the defendant showed, without conflict, that the cars were properly iced, and were kept in that condition from the time they were loaded until they were delivered, and to the main defense interposed by the carrier, that the delay was due to an unprecedented flood, which blockaded the usual railroad routes over which these shipments ordinarily traveled, making such routes impassable, and consequently crowding the lines of railroad over which the cars were
From the foregoing citations it is evident that the act of God must be the proximate cause of the resulting injury, and must be unmixed with negligence on the part of the carrier before it can amount to a complete defense on account of resulting injury or damage to the property, and the same rule must apply where the resulting injury or damage to the property is caused by delay in delivery attributable to the act of God. If the delay be attributable altogether to the act of God, this defense will suffice; but if the delay was partly caused by the act of God and partly by the negligence of the carrier, it then remains to be determined whether the act of God was the proximate cause of the damage to the property, unmixed with the negligence of the carrier. If the act of God alone is sufficient to bring about such a necessary delay as must result in damage to the property in course of transit, the defense would be complete; but it is otherwise where the damage to property resulting from delay in transportation arises on 'account of the act of God combined with the negligence of the carrier.
From the evidence of Mr. Brower, division superintendent of the Atlanta, Birmingham & Atlantic Eailroad, it appears that the distance traveled by the car going to Chicago was 1232 miles, including'407 miles from Thomasville to Birmingham, 411 miles from Birmingham to Finley, and 414 from Finley to Chicago, and that it took that particular ear 147 hours and 35 minutes to travel this distance; which, as the witness stated, was at the rate of “about 8y2 miles an hour.” This witness further said: “Ón my experience as a railroad man, I consider that on a long run. such as this
According to the railroad company’s agent at Thomasville, the difference in time between the ordinary route to Pittsburg and the route which was actually followed on account of the flood conditions was only “6, 8, or 10 hours;” and when it is recalled that the report of the delivering carrier showed that this car reached Pitts-burg at 11 p. m. on April 1, 1913, having been on the road since March 25, whereas under the testimony of Mr. Herbener he had moved perishable vegetables from Thomasville to Pittsburg in 38 hours, it might legitimately be concluded that there was unreasonable delay. To recapitulate, one car was -loaded in Thomasville on March 25, and reached Pittsburg on April 1, at 11 p. m., or more than 7 days thereafter, or (according to Brower) 171 hours and 30 minutes. The other car was loaded in Thomasville on March 27 and reached Chicago on April 3, also more than 7 days later. The plaintiff testified that ordinarily 72 hours was amply sufficient for either shipment to reach its destination, and even if the outside number of 10 hours be added, which Fleming testified would be required to go via the long route, through Richmond to Pitts-burg, the time would be 82 hours, instead of the 171 hours and 30
Admitting, for the sake of the argument, that the testimony showed with sufficient clearness that an unprecedented flood, which might be classed as an act of God, caused the delay in delivery of these two cars, it does not appear that the flood caused all the delay, or even how much thereof could be directly attributed thereto, and, on the contrary, it clearly appears from the evidence in behalf of the defendant that the cars did not move forward at a rate of speed which was reasonable, even under the conditions existing on account of the floods, and the excuse offered was not legal and sufficient, since the consequences arising from the delay could be attributed in part, if not altogether, to the negligence of the carrier, notwithstanding the intervening act of God.
There was sufficient evidence to authorize the recovery by the plaintiffs; and, the assignments of error being without substantial merit, the judgment of the court below is
Affirmed.