Central R.R. & Banking Co. v. Skellie

• Decision Date: 23 February 1891
• Citation: 12 S.E. 1017,86 Ga. 686
• Parties: CENTRAL RAILROAD & BANKING CO. v. SKELLIE et al.
• Court: Georgia Supreme Court

12 S.E. 1017

86 Ga. 686

CENTRAL RAILROAD & BANKING CO. v. SKELLIE et al.

Supreme Court of Georgia

February 23, 1891

Error from city court of Macon; HARRIS, Judge.

R. F Lyon, for plaintiffs in error.

Ross & Anderson, for defendant in error.

SIMMONS J.

Skellie Lowe, and Everett sued the railroad company for damages. They alleged in their petition, in substance, that they made a contract with the railroad company to ship a car load of peaches from Summerfield, on the line of defendant's road, to Savannah, Ga., and thence by steamer to New York that the railroad company sent a car from Macon to Summerfield on Saturday, and they were to load it with peaches by Monday afternoon at 4 o'clock, when the through freight which passed Summerfield on its way to Savannah at that hour was to stop, take up the car, and carry it to Savannah in time for the next day's steamer to New York; that the car was loaded by the hour agreed upon, but the defendant failed to stop its train and take said car to Savannah, as it had agreed to do; that they soon thereafter notified the agent of the defendant in Macon of the failure of the through freight to take up said car, and also notified him that the peaches would thereafter be at the risk of the company; that the agent of the defendant then agreed to ship said car by rail to New York, and promised that it would arrive there by rail as early as it would have done if it had been carried to Savannah and thence to New York by steamer. This they consented to, but informed the agent that it would be at the company's risk; that they would not release it from any damage which they might sustain by reason of its non-compliance with the original contract. They further alleged that if the company had complied with the original contract the peaches would have arrived in New York on Thursday, the 27th of June, and that on that day said peaches were worth in that market from $5.50 to $6 per bushel; that instead of the peaches arriving on Thursday, the 27th, as promised by the agent, on account of the negligent delays of the company and its agents they did not arrive until Saturday, the 29th, too late to be placed on the market of that day; that on account of said negligent delays the peaches were badly damaged, and were not worth more than $1.80 per bushel; that on account of this damage to the peaches, caused by the negligence of the company, the plaintiffs were damaged $914.50. The defendant denied that it made any contract with the plaintiffs to ship the car-load of peaches to New York; that its only contract was to furnish them a car, and carry it to Summerfield; that nothing was said by the plaintiffs as to where the car was to go or when it was to go. It also denied that it made any contract or agreement with them to forward the car by all-rail route from Summerfield to New York, but only agreed to forward it to Atlanta, the terminus of its road. Both sides sustained their allegations by testimony, and the evidence was conflicting on every material point.

1. Upon this state of the pleadings and evidence the court, at the request of counsel for plaintiffs, instructed the jury that "if the jury should find that there was no contract upon the subject of these peaches, then the liability of the defendant would depend upon the common law, which is to forward all freight within a reasonable time and without unreasonable delay, and, on failure to do that, then the liability would be as stated by counsel,--that is, the difference between the price of the peaches in a damaged condition and the price which they would have brought if there had been no unreasonable delay, and if they had been sold upon that day; that would be the difference." The main question in this case, as we have shown by our statement of the pleadings, was whether a through contract of shipment had been made between the parties or not; the one party claiming that they had made such a contract, and the other denying it. This charge, therefore, took the consideration of that question from the jury, and instructed them, in substance, whether a through contract had been made or not, that the railroad company was liable under the common law if it failed to ship these peaches to New York within a reasonable time. We do not understand the law to be as stated by the trial judge. If there was no contract for delivery of the goods in the city of New York, as claimed by the railroad company, then this common-law liability would be to deliver the peaches in good order at either of its termini to the connecting carrier within a reasonable time. It could deliver them either at Savannah to the Ocean Steam-Ship Company, or at Atlanta to a connecting railroad company; and if it delivered them at either place in good order, and in due time, then its liability ceased. If, however, there was a contract by the railroad company to deliver the peaches in New York, and it failed to do so within a reasonable time, and the peaches were damaged thereby, the shippers would be entitled to recover such damages as they sustained from the unreasonable delay; and this would be true whether the shipment was to be made by way of Savannah or by way of Atlanta. We think, therefore, that the exception made to the charge in the thirteenth ground, as above set out, was well taken, and entitles the plaintiff in error to a new trial, because the main issue made by the pleadings was taken from the jury by this charge.

2. As to the admissibility of certain evidence which was objected to before the trial court and admitted, it is perhaps necessary for us to express an opinion, as doubtless the same evidence will be offered on the next trial. We do not think it was error to admit the evidence of Everett, wherein he stated what experience he had had in shipping peaches, which is complained of in the first ground of the motion. That evidence would likely throw light upon the question whether he made the contract with the agent of the company to ship the peaches by way of Savannah and thence by the steamer, because he testified that experience taught him that that was a better way of shipping peaches than by all-rail route, as they were not jostled or jolted so much. Everett insisting in his testimony that he made the contract to ship by steamer, and the agent denying it, this evidence might throw some light upon the question before the jury.

3. The plaintiff in error also complains in the second and sixteenth grounds of the motion that the court erred in admitting the testimony of Skellie as to certain sayings of Englerth, the agent of the company, on the ground that they were declarations of the agent about a past transaction, and were not admissible as part of the res gestæ, and were not admissible for the purpose of impeaching the testimony of Englerth. The record discloses the fact that the defendant company had sued out interrogatories for Englerth, agent, and had asked him about the conversation which he had with Skellie the night after the company had failed to bring the car away from Summerfield. This testimony of Skellie seems to have been in rebuttal of the answers given by Englerth to his interrogatories, and seems to us to have been admissible for that purpose. It was admissible to contradict Englerth's testimony in regard to the conversation between him and Skellie on that occasion. It was claimed, however, in the argument by counsel for the plaintiff in error, that it was inadmissible on the ground that Englerth was simply the agent of the company, and any admissions that he might make in regard to...