Western & Atlantic Railroad v. Camp

Trippe, Judge. 1. The charge of the court relieved the railroad company from the extraordinary liability that had been upon it as a common carrier, and gave the jury the rule approved in 46th Georgia, 433, to-wit: that when goods shipped by a railroad have arrived at their destination and are deposited in a place for safe keeping, the liability of the railroad company as a common carrier ceases, and that of warehouseman commences. This was the proper rule in this case. But the company claims that what passed on the Saturday evening, after the arrival of the goods at Ringgold, between its agent and the agent of defendant in error, changed its character to that of a gratuitous bailee, and from that time it was only liable for gross negligence, and that the court erred in not so charging. The goods had been in the depot four or five days. It was Saturday afternoon when the consignee’s agent inquired of the company’s agent if he should take them out then, or could they remain until the ensuing Monday. Upon learning that the agent of the owner came to town on horseback, he was notified by the railroad agent that the goods could remain until the next Monday and there would be no further charge on that account. It would be a very strict rule upon the owner of goods to hold that this lost him any right he then held. It was only for such a length of time as was almost a necessity, under the circumstances. 2. The whole charge of the court is not given by the reporter, nor are all the requests made by plaintiff in error to the court, to give in charge to the jury, set forth. One or two of those requests could properly have been given; but we [600] think substantial justice was clone by the verdict, and the general charge of the court being correct, and as the requests which might have been properly submitted to the jury would not probably have affected the result, a new trial will not be granted on that account: 20 Georgia, 50; 37 Ibid., 94, 195. 3. There is a still more-serious difficulty in the way of plaintiff in error. The record shows that the interrogatories of four witnesses were read to the jury, and were considered on the hearing of the motion for a new trial. In the brief of the testimony these depositions are referred to as having been introduced on the trial, and by agreement of counsel they were to be used when the motion for a new trial was' heard. From what appears in the testimony in the record, these witnesses whose interrogatories were used were cognizant of the leading and material facts of the case, and doubtless their testimony was of importance to the parties. These interrogatories are not included in the record or in the bill of exceptions, nor does it appear that they were omitted by consent of the parties. Though there was no suggestion of diminution of the record, this court would require a very clear and undoubted case before it would reverse a judgment refusing a new trial under such circumstances. All the testimony should be here unless its immateriality appears. Especially was this necessary in this case. Judgment affirmed.