108 Ga. 296 | Ga. | 1899
The facts of this case are sufficiently indicated in the headnote and the following discussion. Under them we think that the plaintiff in the court below was not entitled to recover from the steamship company. The only things which the company agreed to do were to furnish deck room for the horse, supply it with water, and transport it from Boston, Mass., to Savannah, Ga. The owner agreed that the company should not be liable for any accident or injury' resulting to the animal from the perils of the sea, and that he would furnish the stall and proper grooms to accompany the horse and take sole charge of it. He failed to send any groom to take charge of the horse, and also failed, according to his own testimony, to furnish, a proper stall. A violent hurricane came upon the ship shortly after she left Boston, and lasted nearly twenty-four hours. It was so violent that at times the ship “rolled to an angle of forty-five degrees.” The horse appears to have been safe at four o’clock on the morning of the
It was argued here, in behalf of the defendant in error, that the stall was not properly fastened in its place, but the evidence is uncontradicted that after the storm an inspection showed that the stall had not been moved from where first placed. It was also argued that, as the four sides of the stall were quite low, the company’s servants should, when they saw that a storm was making up, have used ropes to raise or build up the sides, or passed ropes overthe horse’s back, or used some other means •of securing the animal, that it could not be thrown out of the .stall. It does not clearly appear that any such scheme was practicable, but, even if it had been, we think that under its contract the company was under no duty to strengthen or improve the stall. The shipper agreed to furnish the stall, and saw the ..stall before the vessel left Boston. If it was not high enough, the fault was his, for it was his duty to furnish a proper stall. ■Certainly it was not the duty of the company, under this contract, to use ropes or other means to build up the stall after it had been furnished by the shipper and placed upon the vessel. Thus if the injury to the horse resulted from the insufficiency of the stall, it was attributable to the fault of the shipper. Had he complied with his contract to send proper grooms to take charge of the animal, they might have been able, by means of ropes and other appliances, to prevent the injury. Inasmuch as the owner did not furnish any groom, he can not rightfully claim that it was negligence on the part ■of the company not to have done what he had himself agreed to furnish grooms to do. This contract meant more than the learned trial judge instructed the jury it meant. In our opinion it does not mean simply that the shipper should furnish grooms to feed and water the horse and keep the, stall clean,
. Several rulings and charges are complained of in the motion for new trial, but the view we take of the case renders it unnecessary to discuss them. Our opinion, after a careful reading and study of the evidence, is that the plaintiff in the court below was not entitled to recover, and that the court erred in refusing to grant a new trial upon this ground.
Judgment reversed.