88 Ga. 805 | Ga. | 1892
It may also be conceded that by the weight of authority elsewhere, as soon as the carrier proves that the loss happened from the immediate agency of the act of God, a presumption arises that he, the carrier, was duly diligent; and consequently, that the burden of proof is at once shifted to the opposite party. Hutch. on Car., supra, §§202a, 766, 767; Schouler on Bail. & Car., supra, §439. The code, however, in the section just quoted, says that in case of loss the presumption of law is against the carrier, and this affirmation occurs immediately after the duty of extraordinary diligence is enunciated. What, then, is the content of the presumption referred to ? Obviously that the carrier has not been duly diligent, and that the loss in whole or in part is attributable to his negligence. This presumption is not met or removed by showing merely that the act of God was the ultimate occasion of the loss; that is, that it was the final and chief factor from which the loss resulted. To silence the presumption altogether, it is necessary to go further and show that the act of God was the sole cause, and that the loss happened in spite of the use of due diligence'by the carrier to prevent it. This, at least, must be the general rule, and the one applicable to every case in which the circumstances attending the calamity are such as to suggest the probability that the loss might have been avoided had extraordinary diligence been exercised. The present case is one of this character. While the evidence does not show -positively that the use of such diligence would have been effectual, it does show indubitably that the occasion was one which called for some diligence and afforded time and opportunity for exercising it, and that previous to actual trial there was a fair degree of probability of saving the goods from damage by the freshet.
The court erred in not granting a ugav trial on the 5th and 6th grounds of the motion, the points discussed in the 5th and 6th divisions of this opinion.
Judgment reversed.