Richmond & D.R. Co. v. White

• Decision Date: 01 October 1892
• Citation: 15 S.E. 802,88 Ga. 805
• Parties: RICHMOND & D. R. Co. v. WHITE et al.
• Court: Georgia Supreme Court

15 S.E. 802

88 Ga. 805

RICHMOND & D. R. Co. v. WHITE et al.

Supreme Court of Georgia

October 1, 1892

Syllabus by the Court.

1. The rule of "extraordinary" diligence imposed upon common carriers by section 2066 of the Code requires the exercise of that degree of diligence to avoid needlessly exposing goods to injury or destruction by an unforeseen act of God, such as an extraordinary flood or fresher, and also to protect and preserve the goods after the peril has become apparent. And generally, in order for the carrier to avail himself of the act of God as an excuse, the burden of proof is upon him to establish, not only that the act of God ultimately occasioned the loss, but that his own negligence did not contribute thereto, for, "in cases of loss, the presumption of law is against him." This construction harmonizes in principle with cases heretofore dealt with by this court. Berry v. Cooper, 28 Ga. 543; Wallace v. Clayton, 42 Ga. 443; Central line of Boats v Lowe, 50 Ga. 509; Railroad Co. v. Benson, 12 S.E. 357, 86 Ga. 203.

2. A common carrier who, in violation of his general and uniform usage in dealing with consignees, fails to give notice of the arrival of goods, or who wrongfully detains them after they have been applied for by a consignee ready to receive them is guilty of such negligence in exposing the goods to loss or damage by a subsequent freshet occurring while they are in store in his depot, and before giving any notice of their arrival, as to deprive him of excuse by the acts of God, so far as these goods are concerned.

3. After it is shown by dates of shipment that the goods had time to arrive and be delivered to the consignee before the flood occurred, the burden of showing what part of the goods if any, did not arrive within that time, is upon the carrier; and then the burden is on the consignee to show the damage done to those which did arrive, and the amount thereof, in order to recover on the ground of negligence in not giving notice of arrival, or in not delivering on application.

4. As to goods which arrived too late to admit of giving the usual notice to consignees before the flood occurred, the carrier was bound to the exercise of extraordinary diligence in protecting them from damage by the flood while they were in his cars or his warehouse; but, if they were damaged in spite of such diligence, he would be excused.

5. The measure of extraordinary diligence is "that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property;" and the acts and facts constituting that diligence, under all the circumstances of the case, are for determination by the jury. It was therefore error to instruct the jury that, if they find that the loss was in any respect due to the crowded condition of the depot, or to the want of sufficient hands, the carrier is liable. The emergency being extraordinary, the condition of the depot, and the number of hands ready and available for the occasion, might or might not be consistent with the exercise of due diligence.

6. The uncontradicted evidence being that some efforts were made by the carrier to save the plaintiff's goods, it was error to charge the jury, upon any hypothesis grounded on the assumption or contingency, that no efforts whatever were made.

7. Precautions for the protection of property which would have been available, as against any previous flood of which the carrier (a railroad company) had knowledge, would not necessarily fill the measure of extraordinary diligence, inasmuch as history or tradition might make it incumbent on the carrier to have more knowledge than that actually possessed. In such matters it might be just to treat the means of knowledge as equivalent to actual notice.

Error from city court of Richmond; W. F. EVE, Judge.

Action by White & Co. against the Richmond & Danville Railroad Company for injuries to goods in its possession as a common carrier. Judgment for plaintiff. Defendant brings error. Reversed.

Bryan Cumming and Pope Barrow, for plaintiff in error.

J. R. Lamar, for defendant in error.

BLECKLEY C.J.

1. It may be conceded that the weight of authority elsewhere is to the effect that the degree of diligence due from a common carrier in guarding goods against injury by the act of God is not extraordinary, but only ordinary. Hutch. Carr. (2d Ed.) §§ 201, 202; Schouler, Bailm. (2d Ed.) §§ 436, 437. But for us the question is settled by statute. Code, § 2066, reads as follows: "One who pursues the business constantly or continuously, for any period of time or any distance, of transportation, is a common carrier, and, as such, is bound to use extraordinary diligence. In cases of loss, the presumption of law is against him, and no excuse avails him unless it was occasioned by the act of God or the public enemies of the state." A correct interpretation of this language requires us to hold that no degree of diligence whatever will excuse a common carrier of goods if the loss happens by anything except the act of God or the public enemies of the state. This being so, it is only when the loss is alleged to have been occasioned by one of these causes that the diligence of the carrier has to be tested. It follows that, if the rule of extraordinary diligence here prescribed by statute is not applicable in such cases, it could never be applied at all. It may also be conceded that, by the weight of authority elsewhere, as soon as the carrier proves that the loss happened from the immediate agency of the act of God, a presumption arises that he (the carrier) was duly diligent, and consequently that the burden of proof is at once shifted to the opposite party. Hutch. Carr., §§ 202a, 766, 767; Schouler, Bailm., § 439. The Code, however, in the section just quoted, says that, in case of loss, the presumption of law is against the carrier, and this affirmation occurs immediately after the duty of extraordinary diligence is enunciated. What, then, is the intent of the presumption referred to? Obviously that the carrier has not been duly diligent, and that the loss, in whole or in part, is a attributable to his negligence. This presumption is not met or removed by showing merely that the act of God was the ultimate occasion of the loss; that is, that it was the final and chief factor from which the loss resulted. To silence the presumption altogether, it is necessary to go further, and show that the act of God was the sole cause, and that the loss happened in spite of the use of due diligence by the carrier to prevent it. This, at least, must be the general rule, and the one applicable to every case in which the circumstances attending the calamity are such as to suggest the probability that the loss might have been avoided had extraordinary diligence been exercised. The present case is one of this character. While the evidence does not show positively that the use of such diligence would have been effectual, it does show indubitably that the occasion was one which called for some diligence, and afforded time and opportunity for exercising it, and that previous to actual trial there was a fair degree of probability of saving the goods from damage by the freshet. Other persons in the same city who had goods similarly exposed protected them, in whole or in part, by elevating them sufficiently high to prevent the water from reaching them. It was manifestly incumbent upon the carrier to protect these goods in the same way, or by some other means, if it could be done by the exercise of extraordinary diligence. The burden of showing that this duty was recognized, and its performance attempted, and what acts were done in prosecuting the attempt, rested, we think, under the provisions of our Code, upon the carrier. We think, moreover, that this is where the burden ought to rest, for in its nature the defense of loss by the act of God involves a due accounting by the carrier for his own diligence, so as to make it appear that the loss was occasioned by the act of God solely, unmixed with contributory negligence on the part of the carrier. Doubtless where the carrier is in no previous default, and the providential act is so sudden and of such a nature as to leave no interval of time within which preventive measures against its effects could be taken, the mere proof of the act alone, and of the consequent loss, would establish the defense. This would be reasonable. But where the circumstances make a plain case for the exercise of some diligence, and time for its exercise intervenes after the peril has become apparent, the burden of showing that the requisite diligence was actually exercised ought to rest upon the carrier. The inquiry relates to his conduct, and he, his servants or agents, must know what that conduct was, and they of all persons have the best means, and not infrequently the only means, of proving it. It seems...