Susong v. Fla. Cent. & P. R. Co

• Decision Date: 28 April 1902
• Citation: 41 S.E. 566,115 Ga. 361
• Court: Georgia Supreme Court
• Parties: SUSONG v. FLORIDA CENT. & P. R. CO.

41 S.E. 566

115 Ga. 361

SUSONG

v.FLORIDA CENT. & P. R. CO.

Supreme Court of Georgia.

April 28, 1902.

CARRIERS—INJURY TO FREIGHT—LIVE STOCK SHIPMENT—EVIDENCE.

The evidence authorized the verdict. The requests to charge which were refused were, so far as legal and pertinent, covered by the general charge, which fairly submitted to the jury the issues involved in the case, and the charges excepted to were substantially correct. The judgment of the trial judge refusing to grant a second new trial will not be disturbed. (Syllabus by the Court.)

Error from city court of Savannah; T. M. Norwood, Judge.

Action by W. A. Susong against the Florida Central & Peninsular Railroad Company. Judgment for defendant and plaintiff brings error. Affirmed.

Alexander & Hitch, for plaintiff in error.

Adams, Freeman, Denmark & Adams, for defendant in error.

COBB, J. Susong sued the Florida Central & Peninsular Railroad Company fordamages alleged to have been sustained by the failure of the defendant to safely transport and deliver certain live stock which it had contracted to deliver to the plaintiff. The trial resulted in a verdict in favor of the defendant, and the case is here upon a bill of exceptions sued out by the plaintiff, complaining that the court refused to grant him a new trial.

While the evidence was conflicting in some particulars, the jury could have found therefrom the following state of facts: The plaintiff delivered to the Southern Railway Company, at Newport, Tenn., a car load of horses, in which were a certain red bay horse, about six or seven years of age, and a certain chestnut mare, about five years of age, to be transported by the Southern Railway Company and its connecting carriers to Savannah, Ga. The car was unloaded and reloaded at different points ' between Newport, Tenn., and Columbia, S. C. At the latter point the car was unloaded and reloaded, and the seals of the Southern Railway Company placed upon the doors of the car, and in this condition was delivered to the defendant. The defendant did not receipt for the car "as in good order, " but received the same without exception. The car was transported to Savannah in exactly the same condition in which it was received from the Southern Railway Company at Columbia, and the horses which were thus received from the Southern Railway Company were delivered to the plaintiff at Savannah in exactly the same condition in which they were received. The red bay horse above referred to, which had been placed in the car at Newport, Tenn., was not in the car when it was received in Savannah; and the chestnut mare, when received at Savannah, was in a damaged condition. The shipment was made under a special contract entered into in consideration of a reduced rate of freight, wherein it was agreed that the "owner and shipper is to load, transfer, and unload said stock, with the assistance of the company's agent or agents, at his own risk, " and "that the owner and shipper, or his agent or agents in charge of stock, shall ride upon the freight train on which the stock is transported"; and the owner or shipper releases the carrier "from all injury, loss, and damage or depreciation which the animal or animals, or either of them, may suffer in consequence of either of them being weak, or escaping or injuring itself or themselves, or each other, * * * and from all other damages incidental to railroad transportation which shall not have been caused by the fraud or gross negligence of said railroad companies." Neither the plaintiff, who was the owner, nor any one representing him, accompanied the stock upon the freight train upon which they were carried. The jury being authorized, under the evidence, to find that the facts were as above stated, were these facts sufficient to justify a finding in favor of the defendant? It seems to us that the verdict in favor of the defendant can be justified, under the evidence, upon either one of two theories: First, that the loss of the animal which was not delivered at all, and the injury to the animal which was delivered in a damaged condition, both occurred before the car containing the horses which were delivered to the plaintiff was received by the defendant company; and, second, that the loss of the one animal and the injury to the other would probably not have occurred if the defendant had, in compliance with his contract, either accompanied the stock, or had had some one as his...