New Orleans, M. & C.R. Co. v. Mauldin

• Decision Date: 23 December 1912
• Docket Number: 15,587
• Citation: 60 So. 211,103 Miss. 244
• Parties: NEW ORLEANS, MOBILE & CHICAGO RAILROAD COMPANY v. W. M. MAULDIN
• Court: Mississippi Supreme Court

60 So. 211

103 Miss. 244

NEW ORLEANS, MOBILE & CHICAGO RAILROAD COMPANY v. W. M. MAULDIN

No. 15,587

Supreme Court of Mississippi

December 23, 1912

APPEAL from the circuit court of Pontotoc county, HON. JNO. H MITCHELL, Judge.

Suit by W. M. Mauldin against the New Orleans, Mobile and Chicago Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Flowers Alexander & Whitfield and J. T. Brown, for appellant.

There is not one item or proof of negligence on the part of the railroad company. They moved the car promptly from point of origin and when the washout was discovered, and this occurred between the time the car left Pontotoc and the time it reached Louisville, the car was taken back to Ackerman and there turned over to the Illinois Central railroad in order that it might be forwarded to its destination with as little delay as possible. We submit that the railroad company acquitted itself of any charge of negligence when it took the only step any reasonable person would have taken, namely, to forward the stock to its destination via another line with as little delay as possible, and this too at the expense of cutting its proportion of the through rate from a basis of one hundred and ninety five miles of the through haul which it would have received had the car gone on to Laurel, to sixty-eight miles of the haul which it received on the Ackerman delivery.

The railroad company has shown a valid excuse for the little delay charged to it, namely, the storm of unusual violence which washed away part of its roadbed. As said by the Florida court: "Floods of unprecedented violence furnish an excuse even for the loss of, or damage to, the goods and of course they will furnish sufficient excuse for delay." Norris v. Savannah Railroad Co., 1 So. 475.

This rule is also laid down in Pruitt v. Railroad Co., 62 Mo. 527; S. A & A. P. Railroad v. Barnett, 27 S.W. 676.

For these reasons we submit that this case should be reversed.

A. M Mitchell, for appellee.

Negligence was abundantly shown by the testimony.

Appellant relies on the fact that there was an unprecedented rain causing a washout on the line and for which there was no avoidance and would consequently exempt appellant from liability.

The burden of proof to establish this defense was upon the appellant. The only testimony introduced upon this point was defendant's witness, John Cruse, who testified that this washout occurred before the car left Pontotoc. Afterwards he testified that there was a hard rain on them at Houston, a point twenty miles south of Pontotoc, and. that he did not know when the washout occurred, in fact did not know that there was a washout except from the statement of one of appellant's employees. The burden was upon appellant to establish this if relied upon as a defense. Hutchison on Carriers (3 Ed.), sec. 287.

This proposition was submitted to the jury upon proper instructions, instruction No. 17 of appellant, and the issue found against appellant.

OPINION

COOK, J.

This is an appeal from a judgment of the circuit court of Pontotoc county awarding damages to appellee for loss on account of delay to a shipment of live stock.

It is insisted that the record does not show the market value of the stock on the day that it should have arrived at New...