The Ga. R.R. Co. v. Cole & Co

• Decision Date: 28 February 1882
• Citation: 68 Ga. 623
• Court: Georgia Supreme Court
• Parties: The Georgia Railroad Company. vs. Cole & Co.

68 Ga. 623

The Georgia Railroad Company. vs. Cole & Co.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Railroads. Damages. Negligence. Contracts. Practice in Supreme Court. Before Judge Clark. Fulton Superior Court. October Term, 1881.

Reported in the decision.

Henry Hillyer; Hopkins & Glenn, for plaintiff in error.

P. L. Mynatt, for defendant.

Speer, Justice.

The defendants in error brought their action to recover damages against the plaintiff in error for failure to deliver certain goods entrusted to them. They alleged "that in October, 1876, they entrusted plaintiff in error as a common carrier with certain goods, at their depot, in said county, to-wit, six boxes of trees, and three boxes and one bale of trees, all of the value of; the six boxes were to be delivered to J. W. Baker, at Graham's, S. C, and the remainder were directed to be shipped and delivered to J. W. Baker, Kingstree, S. C, both shipments were directed to be sent via Columbia, S. C.... The shipments were made on the 30th and 31st of October, and marked and directed as stated.... The trees shipped were sprigs and sprouts for planting, and had been sold from their nurseries of shrubbery and fruit trees for that purpose to be delivered on certain days, to various persons, at the places mentioned, and said trees without again being planted would in a few days perish, and all this was well known to defendant.... When as a carrier it undertook to carry said trees from Atlanta, Ga., to Graham's and Kingstree, S. C, as said bales and boxes were marked and directed, and the said carriers agreed to send said trees via Columbia, S. C, and the same were so marked. This being the shorter and more direct route to destination... But the defendant below disregarded said in-struction and sent them by another and longer route, and did not carry said goods or securely deliver the same as it undertook and promised, but on the contrary so negligently conducted and misbehaved in regard to said goods as a common carrier that by reason thereof the same became and were lost to plaintiffs."

The defendant below pleaded that if said goods were ever received, the same were promptly and in due time delivered in good order to the South Carolina Railroad, being the next connecting road on to Graham's and Kingstree. That said goods were incorrectly marked, and the delay, if any, was caused by this mistake of the plaintiffs below. A full compliance with their contracts by the delivery of said goods, those destined to Kingstree on the 13th of November, 1876, and those at Graham's on the 20th of November, 1876.

Under the evidence and charge of the court, the jury returned a verdict for the plaintiffs. The defendant made a motion for a new trial, and the same being refused, defendant excepted.

It appears from the evidence that three boxes and bale of the trees were received by the agents of the plaintiffs below on the 7th of November, 1876, at Kingstree, S. G, and were opened there and distributed to the purchasers who called for them; four of the boxes destined for that point did not arrive for several days. The boxes directed to Graham's, S. C, did not arrive there till the 26th of November. These packages were all marked to their destination " via Columbia, S. C." That plaintiffs below had agents at these places of destination awaiting the arrival of the shipments at the time they were expected, and for several days after, to receive and distribute the same to the purchasers. Mr. Cole, one of the plaintiffs, testified that before these shipments were made he went to Werner, agent of the defendant below, to ascertain which was the best way to ship. Did not find him, andwent to see Selkirk, agent of the South Carolina road, but the interview was not satisfactory, and then went back to Werner\'s office and asked him to give witness through rates to Columbia, and he did so at 56 cents per hundred, and he then closed with him, and agreed that the goods should go via Columbia. Some of the receipts were marked " via Columbia, " and others were not. It was also proved that the nearest route for shipment via Columbia to their destination was from Atlanta to Augusta, thence by the Charlotte, Columbia and Augusta Railroad to Columbia, thence by the Wilmington, Columbia and Augusta road to Florence, thence by the North Eastern road to...