135 Ga. 74 | Ga. | 1910
When this case was before the Supreme Court on a former occasion, it was held that the stipulation in the contract for the shipment of live stock, requiring “that, as a condition pre
The special written contract made in regard to shipment of the live stock contained the following provisions: “That he [the shipper] will load and unload said animals at his own risk, and feed, water, and .attend the same at his own expense and risk while they are in the stockyards of the railway company awaiting shipment, and while on the cars, or at feeding or transfer points, or where they may be unloaded for any purpose, whether arising from'accident or delay of trains, or otherwise, and to that end he or his agent in charge of said live stock' shall pay regular published passenger fare when proper under rules governing transportation of live stock, and shall ride upon the freight-train in which said animals are transported; and in case the railway company shall fur
By section 4386 of the Revised Statutes of the United' States it was declared, that, in interstate shipments of live stock, they should not be confined in the ears for a longer period than twenty-eight consecutive hours (by amendment changed to thirty-six, upon written request of the owner or person in charge: 34 U. S. St. L. 607 (U. S. Comp. St. Supp. 1909, p. 1178)) “without unloading the same for rest, wáter, and feeding, for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes.” Section 4387 reads as follows: “Animals so unloaded shall be properly fed and watered during, such-rest by the owner or person having the custody thereof,-or, in ease of his default in so doing, then by the railroad company or owners or masters of boats or vessels transporting the same at the expense of the owner or person in custody thereof; and such company, owners, or masters shall in such case have a lien upon such animals for food, care, and custody furnished, and shall not be liable for any detention of such animals.” By section 4388 it was declared that “Any- company, owner, or custodian of such animals, who knowingly and willingly fails to comply with the provisions of the two
The presiding judge recognized the general principle here announced, but charged the jury as follows: “That part of the contract, gentlemen, requires that Mr. Tollerson or his agent look after, feed and water, and care for the stock en route, and to that end he should have accompanied them, riding on the same train on which they were transported. If they failed to do that, and the stock was damaged by reason of that failure to feed and water them, then he would not be entitled to recover at all, unless you find that stipulation in the contract was waived by the railroad company.” There was no evidence from which the jury would have been authorized to find that there was such a waiver, or on which to submit that question to them. The Revised Statutes of the United States above cited required the railroad company to feed and water the stock in default of the owner’s doing so, and at his expense. This was a shipment from Kentucky to Georgia. At some point along the line of connecting' railroads it was claimed that an expense was incurred for feeding and watering the animals shipped. Upon their arrival, the defendant presented to the plaintiff a bill for such expense, which the latter paid. It did not appear that the plaintiff complied with his contract in respect to the matter of having the stock accompanied and cared for, but, on the contrary, it is plainly inferable from all the evidence that he did not do so. -If by his own default he rendered it necessary for one of the connecting lines of railroad to feed the stock en route, and paid the expense
From what has been said it is apparent that, under the evidence, the jury erred in their finding, and that the court erred in refusing to grant a new trial.
Judgment reversed.
