15 Ga. App. 751 | Ga. Ct. App. | 1915
A car of cottonseed was delivered to the White Plains Railroad Company, at White Plains, Ga., on September 30, 1912, to be transported over that road and the road of the Georgia Railroad and Banking Company (both of which roads were operated by the defendants) to the Southern Cotton-Oil Company at Greensboro, Ga. 'The car reached Greensboro on the afternoon of October 1, 1912, and was there left at the station, as the train that customarily did the switching at Greensboro had already passed that point. Had there been no interruption, it would have been switched to the plaintiff’s mill by “the next freight going west the next day—the next local freight going west, . ; in accordance with the regular course of business between the railroad and the mill.” This car arriving at Greensboro on October 1, after the switching-train had passed that point, in the regular course of business it was obliged to wait until the next day to be switched to the mill of the Southern Cotton-Oil Company. At 6 p. m. on October 1, a strike of all flagmen and conductors of the defendants went into effect, and it remained in effect continuously for about 15 days thereafter. These employees ceased to work, and “the strike was accompanied by much violence and intimidation, and all efforts of the defendants (said efforts having been fully attempted) to forward the freight failed; the violence and armed resistance was of such a character as could not be overcome by the carrier and was not controlled by the civil authorities of the State when they were called upon by the defendants.” The car of cottonseed remained at the station and was not delivered to the plaintiff on its side-track until October 15, 1912; and on account of this
The plaintiff in its petition complained of unreasonable and negligent delay, and of failure of the defendants to give notice of the arrival of the car at Greensboro, and on these grounds sought damages. The evidence was in conflict as to whether notice of the arrival of the car was given by the agent of the defendants to the plaintiff’s cashier. It appears that the train which brought the car to Greensboro placed it on a side-track at the station, in a position where it was practically inaccessible to wagons. It further appears that the regular course of giving notice of the arrival - of freight at Greensboro embraced three different methods, according to the circumstances of each case: Less than car-load lots, consignees other than merchants were notified by postal-cards through the mails, and consignees who were merchants were notified personally by the agent; consignees of car-load lots who had sidetracks of their own were notified by placing their cars on such sidetracks. ' It appears from the evidence that it was impossible to notify the plaintiff of the arrival of the car of cottonseed by placing the car, through the ordinary and usual means, on its sidetrack, ánd, according to the testimony for the defendants, personal notice of the arrival of the car was given to the plaintiff within a day or two from the time the strike was declared. The question whether notice was given personally to the plaintiff was a question entirely for the jury, and need not be considered here. The only question to be determined is whether the trial judge erred in charging the jury as to the degree of care and diligence the defendants were required to exercise.
The 4th ground of the motion for a new trial complains that the court erred in charging the jury as follows: “I charge you that one who pursues the business constantly or continuously for any period of time or for any distance of transportation is a common carrier, and, while a common carrier is bound ordinarily to use
The defense urged by the defendants to relieve them from damages on account of the long delay in delivering the car-load of cottonseed, which arrived at Greensboro on October 1, 1912, and was not finally switched to the track of the plaintiff until October 15, 1912, is the defense provided for under the Civil Code, § 2737. That section is as follows: “Where a carrier receives freight for shipment, it is bound to forward within a reasonable time, although its employees strike or cease to work; but if the strike is accompanied with violence and intimidation so as to render it unsafe to forward the freight, the carrier is relieved as to liability for delay in delivering the freight, if the violence and armed resistance is of such character as could not be overcome by the carrier or controlled by the civil authorities when called upon by it.” It appears, from the general trend of the later decisions of courts of last resort, that a strike accompanied with violence and intimidation may be treated as an act of God, so far as it may cause delay on the part of a carrier in transporting goods (4 Ruling Case Law, §§ 212, 196, '
It appears, from the order of the trial judge overruling the motion for a new trial, that his instruction to the jury that the carrier is bound only to ordinary diligence, where damages for delay in making delivery of goods are sought, was based upon the rule laid down in the ease of Johnson v. East Tenn. &c. Railway Co., 90 Ga. 810 (7), 811 (17 S. E. 121), as follows: “Where a common carrier receives goods for transportation and is sued for delay in delivering them, it is error to charge that the carrier is bound to .extraordinary diligence as to the time of transportation. Ordinary and reasonable diligence is the rule.” In cases of loss, the presumption of law is against the carrier, and the measure of diligence he must exercise to enable him to escape liability, even •where loss was occasioned by. the act of God, is “extraordinary diligence.” Civil Code, § 2712. See also Richmond &c. Railroad Co. v. White, supra, and Atlanta & West Point R. Co. v. Jacobs, 135 Ga. 113 (68 S. E. 1039). The code further provides that, “in order for a carrier or other bailee to avail himself of the act of God or exception under the contract as an excuse, he must establish not only that the act of God or excepted fact ultimately occasioned the loss, but that his own negligence did not contribute thereto.” Civil
We can readily understand how the learned trial judge, not having access, as we have, to the original record in the Johnson case, supra, would feel constrained to charge the rule, there apparently laid down (when taken in connection with ,the printed statement of facts), that ordinary diligence only was required where suit was brought to recover damages arising on account of delay by a common carrier in transporting goods, irrespective of whether or not damages arose because the delay caused the destruction of the goods in whole or in part, or because it occasioned loss to the consignee on account of a decline in the price of the commodity shipped, or for like reasons.
Judgment reversed.