Paramore v. Western Railroad

53 Ga. 383 | Ga. | 1874

Tbippe, Judge.

There is no proof as to what time the hogs died from suffocation. . It is stated by the witnesses that they were placed on the Atlanta and West Point Railroad in cars which were too small and close, and that they were received in the same cars by the defendant, and carried in them without examination to Columbus, where several were found to be dead, and it was thought that this resulted from their being too closely confined. Now, if the hogs had been suffocated whilst they were being transported by the Atlanta and West Point Railroad, then it would not only have appeared who* committed the first default, but that whilst committing it the damage had resulted. And if this defendant had proved such to be the fact, then the liability might have been exclusively fixed on the West Point Road. But it does not so appear. It is iii proof, however, that the defendant received the hogs so crowded in cars that it was dangerous to carry them. This receiving was an act of the defendant. To attempt to transport the hogs so confined was a wrong on its part, a breach of its duty as a carrier. Can a carrier, who is one of a connecting line of carriers, relieve himself from liability by saying that he received the goods from a preceding carrier, so packed in the car or vehicle in which he himself is going to carry them, that they were obliged to be injured in the transportation? If the goods themselves are not in good order, have been already injured, that is one tiling; but the loading or packing them in the cars so that it may produce damage is quite another and different matter. The carrier has full control over this. If the last carrier who receives them finds that they are not in good order, that damage has already occurred, he can protect himself. It might be his duty to receive them in such order and to deliver them — that is, he may be compelled to receive eyen damaged goods — but he is not bound to receive them when they are so badly packed that they cannot be removed without loss: Breed vs. Mitchell, 48 Georgia, 533. So the defendant was not bound to receive these cars from the Atlanta and West Point Railroad with the hogs so crowded that they were in danger from suffocation. If it did, it made the act of that road its own act, and was bound for the damages resulting from it. And the burden is on it to show whether the suffocation occurred before or after its receipt of such cars. Section 2084 of the-Code says that where there are several connecting railroads under different companies, and the goods are intended to be transported over more than one railroad, each company shall be responsible only to its own terminus and until delivery to the connecting road; the last company which has received the goods “as in good order” shall be responsible to the consignee for any damage, open or concealed, done to the goods, and such companies shall settle amongst themselves the question of ultimate liability. The “good order” mentioned in this section hardly means the manner in which goods are packed or stowed in the ear. As stated before, if the goods themselves be in bad order or be damaged, the last road, or indeed any road, can so specify in its. receipt and be protected. But if it were to say in its receipt that it received cars from another road loaded with live hogs, full packed one above the other, it would not be entitled to claim that the road so crowding them was alone responsible for all damages. Such last road should either demand that the manner of the loading be changed and other ears added, or should do so itself. It not only would not be bound to receive and Ship cars so packed, but it would be its duty either to refuse or to have the proper changes made. If, then, a carrier can protect himself against liability for the receipt of goods in bad order — in an unmerchantable condition — or not so prepared for transportation by the shipper as to be safely carried, and also has full control over the manner in which they shall be put aboard his carriages, or those which he makes his own by receiving and adopting them, he should not have the right to set up in his defense that another has acted wrong, when by his continuance of. that wrongful act damage has probably ensued. At least'the burden is on him of showing that it was not by his default or his own negligence, thus proved, that the injury was caused.

Judgment reversed.