Wadley Southern Ry. Co. v. Kent & Downs

• Decision Date: 21 August 1916
• Docket Number: 616.
• Citation: 89 S.E. 765,145 Ga. 689
• Parties: WADLEY SOUTHERN RY. CO. v. KENT & DOWNS.
• Court: Georgia Supreme Court

89 S.E. 765

145 Ga. 689

WADLEY SOUTHERN RY. CO. v. KENT & DOWNS.

No. 616.

Supreme Court of Georgia

August 21, 1916

Syllabus by the Court.

The court having charged the jury in the language of Civil Code 1910, § 2729, as to the duty of a common carrier generally it was not error not to repeat the expression, "which he is able and accustomed to carry," in other portions of his charge dealing with the duty of a railroad company to furnish cars for transportation of freight without unreasonable delay.

A railroad company is under a duty to provide sufficient cars for transporting, without unreasonable delay, the usual and ordinary quantity of freight offered to it, or which might be ordinarily expected in its business.

There may be things of such an unusual character that a railroad company is not bound, under its general duty as a common carrier, to provide cars or special facilities for their transportation. But if in the ordinary course of its business it is accustomed to receive lumber which requires cars 40 feet in length for transportation, or holds itself out as a common carrier thereof, the duty to furnish cars for that purpose arises.

If a railroad company failed to perform its duty in regard to providing facilities for reasonably prompt transportation of freight of a kind and quantity offered to it in the usual and ordinary course of business, in a suit for damages arising therefrom, the mere fact that the company expected to get cars from other railroad companies, and that they refused to let it have such cars because they had an unusual demand therefor, would not necessarily relieve the defendant company from liability.

(a) But the condition of business, the demand for cars, whether usual and ordinary, or unusual and extraordinary, what the defendant had done with a view of providing facilities for the usual and ordinary demands of its business, and the ability or inability to get cars at the time in question were facts for the consideration of the jury in determining whether the defendant had complied with its duty.

The amount of the verdict found was not authorized by the evidence; and, the case not being one in which a reviewing court can direct a modification, a reversal must result.

The assignments of error on omissions to charge without request were not meritorious; nor was there merit in the grounds of the motion other than those not in accord with the rulings here made.

Error from Superior Court, Johnson County; W. W. Larsen, Judge.

Action by Kent & Downs against the Wadley Southern Railway Company. There was a judgment for plaintiffs, and defendant brings error. Reversed.

Saffold & Jordan, of Swainsboro, and Faircloth & Claxton, of Wrightsville, for plaintiff in error.

Hines & Jordan, of Atlanta, for defendants in error.

LUMPKIN J.

Kent & Downs brought suit against the Wadley Southern Railway Company, to recover damages for an alleged failure of its duty as a common carrier by railroad to furnish cars for the shipment of certain lumber. They recovered a verdict. The defendant moved for a new trial. The motion was overruled and the defendant excepted.

1, 2. This suit was not predicated on any violation of a rule of the Railroad Commission, but upon the general duty of a railroad company as a common carrier to furnish cars. It is declared by Civil Code 1910, § 2729:

"A common carrier, holding himself out to the public as such, is bound to receive all goods and passengers offered that he is able and accustomed to carry, upon compliance with such reasonable regulations as he may adopt for his own safety and the benefit of the public."

Section 2736 declares:

"The common carrier is bound not only for the safe transportation and delivery of goods, but also that the same be done without unreasonable delay."

In Ocean Steamship Co. v. Savannah Locomotive Works & Supply Co., 131 Ga. 831, 836, 63 S.E. 577, 579 (20 L.R.A. [ N. S.] 867, 127 Am.St.Rep. 265, 15 Ann.Cas. 1044), Presiding Justice Evans, after referring to the fact that an owner of a ship was under no obligation to provide other ships because his facilities might be inadequate to transport all goods which might be offered to him, said:

"Such a carrier does not owe to the public all the duties imposed by the law on railroad companies and similar public institutions to furnish adequate transportation facilities for all goods which may be tendered. Railroad companies are public institutions, and are granted certain exclusive franchises and rights which naturally impose correlative duties. They are invested with the power of condemnation, by the exercise of which sovereign right they acquire an exclusive privilege to carry on their business over the highway constructed by them. They are endowed with special and unusual powers, with an express view to their rendering to the public adequate service. The conference of these unusual powers raises an obligation, not only to serve the public impartially, but to serve the public efficiently. Upon them the law imposes the obligation to furnish sufficient facilities for the reasonably prompt transportation of goods tendered for carriage; and they are bound to provide sufficient cars for transporting, without unreasonable delay, the usual and ordinary quantity of freight offered to them, or which might reasonably and ordinarily be expected."

In Southern Ry. Co. v. Moore, 133 Ga. 806, 813, 67 S.E. 85 26 L.R.A. (N. S.) 851, it was stated, in substance, that it had been said that the duty of a railroad company to provide facilities for the transportation of goods was not an absolute one; that, while the company must furnish cars sufficient to transport goods offered in the usual and ordinary course of business, it was not bound to anticipate and prepare for an extraordinary and unexpected press of business; that ...