145 Ga. 689 | Ga. | 1916
Kent & Downs brought suit against the Wadley Southern Bailway Company, to recover damages for an alleged failure of its duty as a common carrier by railroad to furnish cars for the shipment, of certain lumber. They recovered a verdict’. The defendant moved for a new trial. The motion was overruled, and the defendant excepted.
In Southern Ry. Co. v. Moore, 133 Ga. 806, 813 (67 S. E. 85, 26 L. R. A. (N. S.) 851), it was stated in substance that it had been said that the duty of a railroad company to provide facilities for the transportation of goods was not an absolute one; that, while the company must furnish cars sufficient to transport goods offered in the usual and ordinary course of business, it was not bound to anticipate andprepare for an extraordinary and unexpected press of business; that a plaintiff who sought to recover from a railroad company for a failure to furnish cars must aver and prove that the goods were properly offered for transportation; and that, where cars were required, there must be a reasonable demand and an offer of goods for transportation.
In Southern Ry. Co. v. Atlanta Sand &c. Co., 135 Ga. 35, 54 (68 S. E. 807), it was said that it is the duty of a railroad company as a common carrier to provide cars sufficient to transport goods offered in the usual and ordinary course of business; but that it is not bound to anticipate and prepare for an exceptional and extraordinary press of business; that, in a suit for failure to furnish cars on proper demand, merely to show that a railroad company did not have enough cars to comply with the demands made upon its service, at the time when cars were ordered from it, would not suffice as a defense, as it might have been negligent in providing for the ordinary conduct of its business, and its own negligence
In the present ease the court charged the jury in the language of the Civil Code (1910), § 2729, as to the duly of a common carrier to receive for transportation all goods offered that it is able and accustomed to carry, upon compliance with such reasonable regulations as it may adopt for its own safety and the benefit of the public. He did not repeat the expression “that he is able and accustomed to carry” each time he referred to this duty. In this there was no error. If he fairly submitted the law, he was not compelled to repeat again and again those words. To have done so would probably have tended to confuse the jury as to the duty of furnishing facilities.
There might be freight of such an unusual and exceptional
In this ease the plaintiffs alleged that they requested the defendant to furnish two cars forty feet in length, which were .the ordinary and usual cars used in carrying lumber of the dimensions which they offered for shipment; and that it was the duty of the defendant to accept and safely carry the lumber and deliver it to its connecting carrier in the line of transportation to its destination. These allegations were denied by the defendant, which also averred, among other things, that the plaintiffs knew that it did not have such cars as were requested, that it had made arrangements for obtaining cars, and that it endeavored to get the cars, but that there was what is known as a car famine on account of greatly increased shipments, and that no cars could be had; that it did all in its power to furnish the cars, but could not do so. The charge of the court restricted the defense rather too closely, making it turn almost entirely on the quantity of the freight, without giving sufficient consideration to the contention as to its character and the requirement for its shipment of cars of a particular kind. In the same connection, he charged that the defendant would not be excused for its failure to furnish cars for transportation by the fact that it expected to get ears from other railroads, and that they refused to let it have cars because they had an unusual demand therefor. While the mere expectation of the defendant and the refusal of other railroad companies to let it have
Judgment reversed.