Purcell v. Southern Express Co.

Walkee, J. [320] [1.] “ A common carrier cannot limit Ms legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and then will be governed thereby.” Code, Sec. 2041. If a common carrier may make an express contract, certainly he will be allowed to prove it; and, as he would not be allowed to limit his liability by an entry on a receipt given, so, of course, he will be permitted to prove it by alitmde testimony. Evidence, then, aside from the receipt, was most clearly admissible to prove an express contract. In this case, we think the express contract was satisfactorily proved, and was a contract outside oí anything contained in the receipt. The receipt was given by a clerk who knew nothing of the express contract, nor of the terms upon which the cotton was received. It certainly would be a great hardship upon defendant, to hold that a receipt given under such circumstances, is eoncluswe, and that no testimony shall be admitted to show, either a special contract or the circumstances under which the receipt was given. Such, we apprehend, is not the law. [2.] A receipt, acknowledging the delivery of the goods, etc., is merely prima faeia evidence of the fact, and not conclusive. 1 Greenl. Ev. 305. We understand it always to be admissible to prove, by parol, such facts as will show that the written instrument never had any legal existence or binding force; that it was given under such circumstances that it fails to contain the evidence of the contract entered into between the parties; this is done, not for the purpose of altering its terms, but to show that it does not contain the agreement of the parties. From this it follows that we think the Court did not err in admitting the testimony of Wilson and Sylvester. [3.] Nor do we think the Court erred in refusing to charge, as set out in the third ground- of the motion for a new trial. The agreement between plaintiff and defendant was, that defendant would ship the cotton on a platform car, and Mullen was to throw a tarpaulin over the cotton, [321] and go along, with buckets of water, to put out fires. Defendant proceeded to carry out it’s portion of the agreement, but Mullen, the agent of plaintiff, failed to carry out his; and plaintiff insists that, because of his failure, defendant was bound to abandon the contract; or, at any rate, must give notice to plaintiff before proceeding to carry it out. We are not aware of any legal principle which requires any such thing. It was the duty of the parties, respectively, to perform their several obligations, at the proper time. Eailroads have their schedule times for running their trains, and it is the duty of persons having business to be transacted by them, to be on hand at the proper time. The road was not bound to await the plaintiff’s convenience, in the absence of contract, but was authorized to proceed to carry the cotton, if it saw proper to do so. It is true, the road might have declined to take the cotton at all, upon plaintiff’s failure to comply with the part of his agreément, but was not bound to do so. The defendant saw proper, in the absence of the agent of plaintiff, and without the agreed precautions against fire, to undertake to carry the cotton ; and the question here is, did it, under the circumstances, use ordinary care and diligence, — such care as the law requires. [4.] “ Common carriers cannot, by any special contract, exempt themselves from liability from losses arising from negligence.” Berry et. al. vs. Cooper et. al. 28 Ga. R., 543. [5.] Having taken the cotton, it lies on defendant to show what became of it; and to show it was lost without its fault. Does the proof relieve defendant from liability? The cotton was shipped for Wilmington, N. C. Why it was left at Branchville, S. C., the proof fails to inform us. The receipt given by Wilson says: “ Which (cotton) it is mutually agreed, is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.” Was Branch-ville the agency nearest or most convenient to destination, [322] and was the cotton delivered to other parties to complete the transportation ? Delivered to whom ? [6.] It was left on a side track, within ten feet of the passing engines, and was in danger of fire from the sparks, and was actually burned in a short time thereafter; or, as Damiste, the conductor, says, “ about that time.” Cole, Superintendent of Georgia Railroad, “ an expert,” says, when cotton is left at a station, it should be under guard, and when left on side lines, is -in danger of being fired from passing engines : the conductor says the same thing. Row, what excuse does defendant offer for leaving this cotton in this exposed condition, and without a guard? We have looked in vain for any sufficient excuse in the testimony. If any justification exists, we presume it can be made appear on another trial. To our minds, the leaving of 33 bags of cotton, on an open car, within ten feet of the track, where it is exposed to sparks of fire from passing engines, without any guard, and without any good reason for so doing, looks very much like gross negligence, and, unexplained, makes defendant liable for the loss thereby occasioned. At any rate, as the defendant, in this case, has, in our opinion, failed to show that there was “ no negligence ” on its part — and this burden was upon it, Berry vs. Cooper, supra,—we think the ends of justice require a new trial. [7.] We do not think the Court erred in refusing to charge,.as set out in the 3d ground of the motion for a new trial. The Act to define the liability of common carriers, in certain cases,” assented to 18th April, 1863, was passed to meet a certain state of things, specified in the preamble, and we are not disposed to extend its provisions beyond its terms. It has expired by its own limitation. We do not think the facts of this case come within its provisions. We think the notice spoken of in the Act was public notice. A new trial should be granted on the ground indicated above. Judgment reversed.