Ragsdale, Harper & Weathers v. Southern Railway Co.

Lamar, J. The plaintiffs’ stock was shipped under a special contract like that referred to in Williams v. Central Ry. Co., 117 Ga. 830, and Central Ry. Co. v. James, 117 Ga. 832. The case is controlled by the principle announced in those decisions. The shipper, in consideration of a lower freight rate, stipulated^hat he would examine the car in which the stock were to-be shipped; that he would have some one to accompany the stock and take charge thereof; and that he would relieve the company of damages caused by defects in the car or occasioned by the viciousness [628] of the animals. The suggestion that a slat had been broken by the jamming together of the ears was not sustained by the evidence, one of the plaintiffs testifying that he did nót know how it had been caused; that it “ might have been by a kick.” There was no proof of any “ jamming,” and no explanation as to how the coming together of the cars would break one slat and leave no other sign. All the circumstances indicated that it was caused by the kick of one of the mules, and against the consequent injury the company was relieved. Neither was there evidence to sustain the theory that the animals had been removed from the car number N. E. 10118 and placed in number N. E. 10178. The way-bills offered by the plaintiffs indicated that the number of the car inserted in the bill of lading was a clerical mistake, and that the animals were received in Atlanta in the car in which they had been shipped from Memphis. At any rate it was incumbent on the plaintiffs to make out the case. The suit was on the theory that the mules were shipped in number 10178. There was no suggestion in the pleadings ór evidence that they had been changed from one car to another, and no proof of negligence on the part of the company. All the evidence indicated that the injury had been occasioned by a defect in the car, or viciousness in the mules, from both of which the shipper for a sufficient consideration had expressly released the carrier. Civil Code, § 2276. Judgment affirmed. All the Justices concur, except Simmons, G. J., absent.