129 Ga. 647 | Ga. | 1907
H. M. Tollexson brought an action against the Southern Eailway Company, in which he claimed that he had delivered a carload of live stock to the defendant company at Shelby-ville, Kentucky, for shipment to McDonough, Georgia; that the stock was in good condition when delivered to defendant and was in a depleted, exhausted, and famished condition when delivered to him at McDonough, from lack of food, water, and proper care and attention while en route. Upon the trial there was a verdict for the plaintiff; and the case is here for review upon a bill of exceptions sued out by defendant, in which error is assigned on the' overruling of its motión for a new trial. There were several points made in the motion for a new trial and insisted on in this court,, but we deem it necessary to deal specifically with one of them only,, as it will control the case as made by the present record. Uponthe trial the plaintiff put in evidence a written contract entered into between himself and the Southern Eailway Company in Kentucky, Incorporated, for the shipment of the stock in question.. In this contract there was the following stipulation: “That, as.
The plaintiff testified: The stock were in good condition when they were shipped from Shelbyville.. “They were in bad condition when they arrived at McDonough. They ran out of the car, or a lot of them did, with their tails wagging like you have seen sheep, and lots of them looked like they had been gutted. I paid $50.00 more for one of the horses than I did for the others [there were four horses and twenty-seven mules], but when they ran out of the car I could not tell which one it was. They all looked alike to me. I brought the stock to town and turned the mules in the pen. One of them died on Sunday. [They were delivered to him at McDonough Saturday afternoon about five o’clock.] On Monday morning another laid down and a lot of' mules trampled over it. I got it up and worked with it, and they have been all the spring getting over it. On putting them to work they would give out. Their condition was caused by being on the car too long without feed and water. . . The Monday morning after the
E. S. Williams, sworn in behalf of plaintiff, testified as follows: "I am agent of the Southern Railway Company at McDonough. Mr. Brown, the plaintiff’s attorney, filed a written claim with me for damages to this shipment of stock a month or two after they were received. . . I have not the writing that was given to me; I turned it over to the proper authorities of the railway company. . . To the best of my recollection it was not filed with me until several months after the stock was received.”
There was no other evidence whatever "in reference to service of notice on the railway company of the plaintiff’s claim for damages. It thus clearly appears, from the evidence submitted by the plaintiff on the trial, that the stipulation as to giving the written notice
Judgment reversed.
