Western & A.R. Co. v. Exposition Cotton Mills

• Decision Date: 05 November 1888
• Citation: 7 S.E. 916,81 Ga. 522
• Parties: WESTERN & A. R. CO. v. EXPOSITION COTTON MILLS.
• Court: Georgia Supreme Court

7 S.E. 916

81 Ga. 522

WESTERN & A. R. CO. v. EXPOSITION COTTON MILLS.

Supreme Court of Georgia

November 5, 1888

Error from city court of Atlanta; VAN EPPS, Judge.

Action by the Exposition Cotton Mills against the Western & Atlantic Railroad Company. Plaintiff obtained judgment. Defendant brings error.

Julius L. Brown, for plaintiff in error.

B. F Abbott, for defendant in error.

SIMMONS J.

The Exposition Cotton Mills, of Atlanta, Ga., sued the Western & Atlantic Railroad Company for damages, upon the following state of facts: The plaintiff purchased from Riley & Co. certain cotton-mill machinery, and made a contract with the Virginia, Tennessee & Georgia Air-Line to ship the machinery from Boston and other places in the east to Atlanta, at a reduced rate of freight, and at the "owner's risk." The different roads over which it was to be shipped were mentioned in the bill of lading, commencing with the New York & New England Railroad Company, and ending with the Western & Atlantic Railroad Company; the latter having its terminus in the city of Atlanta. A portion of this machinery was shipped from Boston some time in September, and arrived in Atlanta some time in October; being over 30 days on the route. When this portion of the machinery arrived in Atlanta, and was delivered to the Exposition Cotton Mills, it was found to be badly damaged by rust. The delivery at the mills was made by the Georgia Pacific Railroad Company, to which the Western & Atlantic Railroad Company had delivered the cars containing the machinery, at its depot in Atlanta on the morning of the 20th of October, 1882, and it carried the cars thence to the mills, two miles and a quarter from the depot. The bill of freight for the machinery was made out against the Exposition Cotton Mills by the Western & Atlantic Railroad Company, and the freight charges paid to it by the Exposition Cotton Mills. The evidence further shows that when this particular lot of machinery was about to be shipped, application was made to the railroad company by Leigh & Co., shipping agents of Riley & Co., for cars in which to transport it; and Leigh & Co. were informed by the agent of the railroad company that he could only furnish flat cars. These flat cars were accepted by the shippers, and the machinery was loaded thereon, and started south towards Atlanta. In one of the contracts for the shipment of the machinery, it was stipulated that the machinery, after it was first loaded, should not be changed to other cars, but should go through on the same cars to its destination. It was stipulated in the bill of lading that the railroad company should not be held liable for "any loss or damage arising from the following causes, viz.: Fire from any cause, on land or water, *** freshets, floods, weather, *** explosions, accidents to boilers and machinery, *** insufficiency of package in strength or otherwise, rust, dampness," etc. On the trial of the case, the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial, which was overruled by the court, and it excepted. The view we take of this case renders it unnecessary for us to discuss all of the 47 grounds of this motion. There are certain legal principles which control the case, and when they are discussed and decided they will sufficiently determine the liability of the railroad company under this form of action.

1. It was contended by counsel for the plaintiff in error that the Western & Atlantic Railroad Company was not the last road receiving the machinery, and therefore was not liable because it delivered the cars containing the machinery to the Georgia Pacific Railroad Company. The court below, however, instructed the jury that, under the contracts of shipment, the Western & Atlantic Railroad Company was the last road. We do not see any error in this charge. This was a through bill of lading from Boston to Atlanta, and, according to one of the stipulations therein, the machinery was to be delivered to the Exposition Cotton Mills, in Atlanta, by it and its agents, the railroads mentioned therein. The Western & Atlantic Railroad Company was one of the roads mentioned, and made out its freight-bill against the Exposition Cotton Mills, and the freight charges were paid to it by the Exposition Cotton Mills. The simple fact that the Western & Atlantic Railroad Company pushed these cars from its track to the track of the Georgia Pacific Railroad, in Atlanta, and the latter carrying the cars two miles and a quarter to the mills, could not make the latter, under this contract, the last road receiving the machinery, under a proper construction of the contract. The bill of lading upon which this machinery was shipped, stipulated that the roads therein mentioned would deliver the machinery to the Exposition Cotton Mills, in Atlanta. ...