Western & A.R. Co. v. Waldrip

• Decision Date: 23 June 1916
• Docket Number: 6943.
• Citation: Western & A.R. Co. v. Waldrip, 89 S.E. 346, 18 Ga.App. 263 (Ga. App. 1916)
• Parties: WESTERN & A. R. CO. v. WALDRIP.
• Court: Georgia Court of Appeals

89 S.E. 346

18 Ga.App. 263

WESTERN & A. R. CO. v. WALDRIP.

No. 6943.

Court of Appeals of Georgia

June 23, 1916

Syllabus by the Court.

A carrier is bound to exercise ordinary diligence (Civ. Code 1910, § 2711), and a common carrier to use extraordinary diligence (Civ. Code 1910, § 2712). A private carrier "is bound only to exercise reasonable care in respect to the goods, but is liable for failure to use ordinary care." 1 Michie on Carriers, 726. All persons who undertake, for hire, to carry goods of another are either private carriers or common carriers. The former are liable only for injury or loss of the goods intrusted to them resulting from the failure of themselves or their servants to exercise ordinary care, and the latter liable as insurers for all injury or loss not resulting from the act of God or the public enemy. Notwithstanding the usual rule that "a railroad company chartered to transact the general business of a common carrier cannot by special contract make itself a private carrier as to a particular commodity which it is bound to transport as a common carrier, * * * it has been held that as to live stock a common carrier may, by an agreement with the owner, so vary and change his relation as to become a private carrier." 4 R.C.L. 549, 550.

A live stock contract limiting the liability of a carrier in consideration of a reduced rate is valid and binding under the laws of this state. Civ. Code 1910, § 2726; Georgia Railroad v. Spears, 66 Ga. 485, 42 Am.Rep. 81; Cooper v. Raleigh & Gaston Railroad Co., 110 Ga 659, 36 S.E. 240; N., C. & St. L. Ry. v. Truitt Co., 14 Ga.App. 767, 82 S.E. 465.

Under the terms of a valid live stock contract, which in consideration of a reduced rate fixed the liability of the carrier as that of a private carrier only, the carrier was bound to exercise ordinary care, and the trial court did not err in so instructing the jury.

(a) The court did not err in failing to instruct the jury that the carrier was bound to exercise only slight diligence, and was liable only in the event of gross negligence. In the case of Georgia So. Ry. Co. v. Greer, 2 Ga.App. 516, 518, 58 S.E. 782, the contract itself expressly declared that the carrier should be bound only to exercise slight diligence and liable for only gross negligence, but no such provision appears in the contract under consideration.

Grounds of a motion for a new trial complaining of the exclusion of testimony...