Cooper v. Raleigh & G. R. Co

• Decision Date: 16 May 1900
• Citation: 110 Ga. 659,36 S.E. 240
• Court: Georgia Supreme Court
• Parties: COOPER. v. RALEIGH & G. R. CO. et al.

110 Ga. 659

36 S.E. 240

COOPER.

v.RALEIGH & G. R. CO. et al.

Supreme Court of Georgia.

May 16, 1900.

CARRIERS—LIABILITIES—DAMAGE TO PROPERTY—SHIPMENT OF LIVE STOCK—LIMITING LIABILITY—UNLOADING.

1. A common carrier of goods is excused from liability for loss of or damage to such property only in the event loss or damage results from the act of God or of the public enemy.

2. While a common carrier of goods, who also transports live stock, is, as to the latter property, a common carrier, certain exceptions have grown up in his favor, exempting him from liability for loss or injury caused by the nature and propensities of the animals.

3. In the trial of an action brought against a carrier of live stock to recover damages for loss of or injury to stock which he had undertaken to transport, after proof of loss or injury there is a presumption of law that he was at fault, and the burden rests upon him of showing that he is not liable, by reason of the happening of some cause which the law recognizes as an excuse.

4. A carrier of live stock may by special contract so limit his liability for loss or damage that he will be liable only in the event he is guilty of "gross negligence."

5. When, in such a contract, it was provided that the shipper should "unload [the] stock, with the assistance of the company's agent or agents, at his * * * own risk, " it is the duty of the shipper either to be present himself, or have some one representing him present, at the unloading of the stock; and, in the trial of a suit in which the carrier relied on such a contract as a defense, it is not error to so charge the jury, if they are also instructed that a failure of the shipper to be present, or have some one present in his behalf, would not defeat a recovery by him unless it appeared that the damages claimed resulted from such failure.

(Syllabus by the Court.)

Error from city court of Athens: Howell Cobb, Judge.

Action by C. W. Cooper against the Raleigh & Gaston Railroad Company and others. Judgment for defendants, and plaintiff brings error. Reversed.

Henry G. Tuck, for plaintiff in error.

Erwin & Brown, for defendants in error.

COBB, J. The plaintiff brought an action against the defendants to recover damages on account of injuries which it was alleged had been inflicted, by the negligence of the servants of the defendants, on certain live stock which they had undertaken to transport for the plaintiff from Atlanta to Athens. See Cooper v. Railroad Co., 105 Ga. 83, 30 S. E. 731. The petition set forth two elements of damage. It was alleged first that one mule worth a stated sum had been rendered practically worthless by having one leg broken; this injury resulting from the mule getting its foot hung in the open latticework forming the side of the car in which the stock were shipped. The other element of damage was alleged to have arisen from the conduct of the defendants in unloading the stock at Athens, after the hour of midnight, into an open pen or inclosure, while the weather was very cold, and a strong, biting wind or blizzard was blowing, in which inclosure the stock remained the balance of the night, and from such exposure they contracted distemper, and on account of this were injured and damaged in a stated sum. The defendants answered, denying the material allegations of the petition. The case went to trial, and a verdict was returned in favor of the defendants. The plaintiff's motion for a new trial having been overruled, he sued out a bill of exceptions to this court, complaining of the refusal of the court to grant him a new trial.

Under the common law, a common carrier was liable absolutely and at all events to deliver the property which it had undertaken to carry safely to the consignee or owner, and was excused from liability only when the loss or injury was caused by an act of God or the public enemy, or the shipper's negligence. 6 Am. & Eng. Enc. Law (2d Ed.) p. 263; Fish v. Chapman, 2 Ga. 349; Cooper v. Berry, 21 Ga. 535. The statute of this state is to the same effect. Civ. Code, § 2264. The transportation of live stock over land was, however, unknown to the common law, and consequently the liability of carriers of live stock is not to be determined by the strict common-law rule. Railroad Co. v. Spears, 66 Ga. 485; Pardington v. Railway Co., 38 Eng. Law & Eq. 432; 2 Ror. R. R. pp. 1301, 1302. By statute (17 & 18 Vict. c. 31, § 7), carriers of live stock were in England made liable as common carriers. While there has been some doubt as to whether carriers of live stock were common carriers, it seems to be well settled now that they are. Hutch. Carr. §§ 217, 218; 5 Am. & Eng. Enc. Law (2d Ed.) 428; and cases cited in each.

2. While carriers of live stock are common carriers, certain exceptions have grown up in their favor, arising from the nature of the property transported. Among these exceptions are the natural death of the animals, the vicious and uncontrollable nature of the stock, and similar exceptions. Such causes are within the principle which excuses common carriers from loss or damage resulting from the act of God. They are causes which arise from the nature and propensity of the animals, and which could not be prevented by foresight, vigilance, and care. Hutch. Carr. § 216a; 5 Am. & Eng. Enc. Law (2d Ed.) p. 443. Such exceptions as these were clearly recognized in the ease of Railroad Co. v. Spears, cited above; holding that carriers of live stock were common carriers.

3. It being settled that a carrier of live stock is a common carrier, and entitled to the privileges of, and, with the exceptions just referred to, subject to the penalties imposed on, such a carrier, the question arises as to whether, under our law, in a case like the present, the burden of showing negligence is on the plaintiff, or whether it is incumbent on the carrier to show that the failure to deliver the stock in good order was attributable to some cause which the law recognizes as an excuse for such failure. The Code declares that "in case of loss the presumption of law is against [a common carrier], and no excuse avails him unless it was occasioned by the act of God or the public enemies of the state" (Civ. Code, § 2264), and also that "a railroad company shall be liable for damage done to persons, stock or other property of such company, or for damages done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company" (Civ. Code, § 2321). It would follow that in a suit against a railroad company, acting as a common carrier of live stock, for damages alleged to have resulted from the way in which the stock were...