Cranor v. Southern Ry. Co.
| Decision Date | 25 June 1913 |
| Docket Number | 4,818. |
| Citation | 78 S.E. 1014,13 Ga.App. 86 |
| Parties | CRANOR v. SOUTHERN RY. CO. |
| Court | Georgia Court of Appeals |
On Rehearing, July 15, 1913.
Syllabus by the Court.
Where in a suit for damages, the jury returns a verdict finding in effect that the defendant was not guilty of negligence, and a motion for a new trial, filed by the plaintiff, is overruled if the latter judgment is affirmed, the striking of certain items of damage from the petition, even if erroneous, is immaterial.
A common carrier of live stock cannot contract against liability caused by its own negligence; but it may make reasonable stipulations in reference to matters which are merely incidental to the transportation of the animals, such as loading and unloading and caring for the stock. If such a contract is made, the shipper cannot recover for any damage which results from his own failure to comply with his engagement. In view of the allegations of the petition in the present case, it was competent for the defendant to plead a contract of the nature above indicated.
Where goods are transported over the lines of several carriers under a contract with the initial carrier for delivery at destination, each succeeding carrier is the agent of the first carrier, and as such, if sued for the loss of or damage to the goods, is entitled to the benefit of any contractual exemption which the initial carrier would have been allowed to plead had he been sued for the failure to transport safely. This rule is applicable to carriers in interstate as well as intrastate commerce.
There is nothing in the act of Congress known as the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St Supp. 1911, p. 1288]) or in the Carmack amendment to that act which prohibits a carrier of live stock from stipulating against liability resulting from the failure of the shipper to accompany and care for the stock, or from entering into any other reasonable stipulation which does not amount to a contractual exemption from liability on account of the carrier's negligence.
Under the evidence the real issue was whether the defendant had improperly fed and watered the live stock; and therefore the contract of affreightment which required the shipper to accompany and feed and water the stock was not material, but its admission in evidence did not result in injury to the plaintiff.
If the provision in the contract of affreightment requiring the carrier to furnish the shipper free passage for himself or agent, in order to enable him to accompany the stock, was valid and binding upon the parties, it was the duty of the shipper to apply for transportation. Having failed to request that a pass be issued to him in accordance with the terms of the contract, he cannot urge, as an excuse for failing to accompany the stock, the failure of the carrier to issue the transportation.
The evidence demanded a finding that the contract of affreightment was issued to the plaintiff in consideration of a reduced rate of freight.
The evidence authorized the verdict, and there was no error in overruling the motion for a new trial.
(Additional Syllabus by Editorial Staff.)
In an action for injuries to live stock in which defendant pleaded a stipulation of the contract of shipment requiring the plaintiff to accompany the stock, which he failed to do, plaintiff could not recover, as an element of his damages, traveling expenses incurred in coming to a distant city to ascertain the condition of the stock while they were in the hands of the carrier.
Though petition in an action by a shipper of live stock alleged that defendant carrier failed to take proper care of the stock and failed to water the same properly, allegations of the answer setting up a contract of affreightment, requiring plaintiff to accompany and feed and water the stock, was not irrelevant to the issue.
In determining the rights and liabilities of the parties to a contract stipulating for the carriage of goods in interstate commerce, the acts of Congress and the decisions of the federal courts construing them are controlling.
In the absence of a contract, the carrier is required to feed and water live stock.
Though the contract for the shipment of stock requires the shipper to accompany and feed the same, if the carrier undertakes to perform this duty it is bound to exercise care in doing so.
If a stipulation in a contract of shipment requiring the carrier to furnish a pass was valid and binding, no previous practice or custom could relieve it from the obligation.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by John Cranor against the Southern Railway Company. From a judgment for defendant, plaintiff brings error. Affirmed.
A. H. Davis, of Atlanta, for plaintiff in error.
McDaniel & Black and E. A. Neely, all of Atlanta, for defendant in error.
The plaintiff sued the railway company for damages on account of injuries to certain live stock in a car which was delivered to the Atlantic Coast Line Railroad Company in Deland, Fla., consigned to Howell Station, Ga., for transportation by the Atlantic Coast Line and connecting railroads to Atlanta, Ga. The car of stock was delivered by the initial carrier to the Southern Railway Company at Jacksonville, Fla., for transportation to Atlanta. The consignee at Howell Station was plaintiff's agent in and about the reception and caring for the stock after arrival. The contract made with the initial carrier bound it to carry the stock to Jacksonville and deliver it to a connecting carrier; and the defendant company received the stock at Jacksonville and undertook to transport the same with due diligence to the place of destination. Delivery was made by the defendant to the consignee on April 28, 1910, but the stock were in very bad condition, being run down, jaded, and sick. One horse and one mule died on April 30th, and another horse continued sick and died a week or ten days after arrival. The defendant was immediately notified of the condition of the stock and had them examined by a veterinarian. While in transportation from Jacksonville to Atlanta, the stock were entirely under the control and care of the defendant; the plaintiff having no agent with the stock and having no arrangement or agreement with the defendant that he or his agent should accompany the same. The plaintiff alleges that the stock were sound and in good condition when delivered to the defendant; that the defendant failed to take proper care of the same and furnished them with insufficient food, did not water the stock properly and sufficiently, and gave them impure water to drink which poisoned them; that by reason of the defendant's negligence it became necessary for the plaintiff to come to Atlanta and look after the care and treatment of the stock; that, in order to cure them and put them in a salable condition, he incurred certain necessary items of expense, such as railroad fare, board, and feed for the stock and treatment by a veterinarian. In addition to these items of damages, the plaintiff lost the value of three head of stock which died and certain sums on account of deterioration in value of others. Upon demurrer the court struck from the petition the claim for damages on account of the plaintiff's railroad fare and expenses.
The defendant answered, denying all allegations of negligence. By amendment the defendant pleaded that the shipment of live stock was made under a through contract of affreightment between the plaintiff and the Atlantic Coast Line Railroad Company in consideration of a reduced rate. This contract provided that, in consideration of the reduced rate and of a free pass issued to the owner or his agent, the owner released all the carriers from risk of injury to the animals in consequence of their inherent nature or resulting from any material used by the owner for feed of the stock and certain other causes. The contract further stipulated that the owner should feed, water, and attend to the stock at his own expense and risk while in the railroad stock yards awaiting shipment, or at a transfer point, or while unloaded for any purpose; also that the owner should ride upon the freight train upon which the stock was transported; that the value of each horse or head of stock did not exceed $75; that notice in writing of any claim for damages should be given to the carrier before the stock were moved from the place of destination; and that, if it was necessary for the stock to be transported over the line of any other carrier or carriers to the point of destination, delivery might be made to such other carrier for transportation upon such terms and conditions as it might be willing to accept, provided that the terms and conditions of the contract made with the initial carrier should inure to the benefit of such other carrier, but that no carrier should be liable for the negligence of any other carrier. This amendment was objected to by the plaintiff upon the following grounds: (1) That it did not sufficiently appear that the defendant railway company accepted the shipment upon the terms and conditions of the contract made with the initial carrier; (2) that no facts were alleged which would bring the defendant under any of the exceptions or exemptions from liability stipulated in the contract; (3) that it did not appear from the amendment how or why the terms of the contract inured to the benefit of the defendant; (4) there was no allegation that the plaintiff had been furnished with a free passage, and the terms of the contract in reference to this matter and the requirement that the owner accompany the stock were irrelevant, there being no claim of liability except from improper feeding and watering (5) there was no allegation that the failure of...
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