Southern Railway Co. v. Gardner

Cobb, P. J. (After stating the facts.) 1. If the original petition be treated as an attempt to enforce the common-law liability upon the defendant, it was defective, for the reason that it did not definitely allege that the' damage resulted from the act of the defendant after it had received the car. If the petition was an attempt to enforce upon the defendant a liability under the statute, on account of’ its being the last of a connecting line of carriers, the petition was likewise defective, for the reason that it did not allege that the corn was received as in ’good order by the defendant. But, under the liberal rule laid down in Ellison v. Georgia R. Co., 87 Ga. 692, which is now a part of the statute law of this State (Civil Code, § 5098), the petition was amendable. • It could have been amended by alleging that the damage occurred on the line of the defendant; which would have made it [323] set forth a good cause of 'action under the common.law. It could have been amended by alleging that the defendant was the last of a line of connecting carriers, and that it received the corn as in good order. The plaintiff offered an amendment of the latter character; and the petition, as amended, set forth a cause of action. The cause of action, in the original petition, was incomplete, but there was enough in the petition to amend by, under the rule laid down in the section of the code above referred to. The amendment did not change or shift the cause of action set forth in the original petition. It merely took that which was in the original petition which was insufficient and defective, and supplied a necessary allegation ; and the petition and amendment, when taken in connection with each other, set forth a complete cause of action. In Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441, an examination of the record shows that in the original petition there was a distinct allegation that the damage occurred on the line of the defendant, and therefore there was a complete cause of action upon the common-law liability set forth in the original petition. The amendment sought to convert this into a cause of action arising upon the liability under the statute, and it was held that this could not be done. If, in the present case, the original petition had alleged that the damage occurred upon the line of the defendant, the objection to the amendment, that it added a new cause of action, would have been well taken. 2. The petition alleged that the plaintiff refused to accept the corn, on account of its- damaged condition, and that his refusal continued. for five days, and finally, on the 8th of April, the agent persuaded him to take the corn, pay the freight, and make his claim for damages. If the defendant company was not liable to the plaintiff on account of the delay in the transportation of the corn, this action of the agent, in persuading him to receive the com and pay the freight, would not impose a liability, unless it appeared that the agent had authority from the company to assume a liability which did not exist. A station agent of a railroad company has. no implied authority to impose a liability upon the railroad ,company when hone in fact exists against it. So that the case at last depends on the question as to whether there was a liability upon the company; and the action of the station agent in reference to the matter becomes immaterial. The collection of the freight [324] by the station agent would not affect the question, because the consignee was liable for the freight, and the railroad company could have treated the corn, even in its damaged condition, as the property of the consignee, and disposed of it in the manner prescribed by law for the enforcement of its lien for freight. 3. It appeared, from the evidence, that the corn was received by the Kansas City, Memphis & Birmingham Railroad Company, on March 14, 1903; that it was received by the defendant, at Birmingham, on March 29, 1903, at 11 o’clock a. m.; that there was a delay in Birmingham, due to the then congested condition of the yard and the large amount of business to be handled; and that it reached Locust Grove on the 2d or 3d of April, 1903. There was no positive evidence as to the condition of the corn at the time- it reached Birmingham. Several witnesses testified as to the length of time required for corn to become heated and to sprout, as had occurred before it reached Locust Grove, the time varying from seven to ten days; one witness testifying that it might occur in seven or eight days, possibly ten days; and other witnesses testifying that it could not occur in less than ten days at that season of the year. The-defendant, so far as the record discloses, gave no receipt for the corn at Birmingham, but there would be a presumption that it received it at that point in good order; but this presumption is not conclusive, and the company would be authorized to overcome it by proof. Southern Ry. Co. v. Waters, 125 Ga. 520. If the corn was in a damaged condition at the time it reached Birmingham, of course its condition would become worse from day to day; but if the defendant transported the car within a reasonable time after it received it, it would not be liable in damages to the plaintiff in the eveñt the damage originated before it received the car. The-duty owed by it was to exercise reasonable diligence in the transportation of the car after it was received. According to the testimony, under ordinary conditions four days would be a reasonable time for a car to be transported from Birmingham to Locust Grove. Taking the evidence in its most favorable light for the plaintiff, it would authorize a finding that the car was in transit six days between these points. It is claimed that the railroad company is not responsible for any consequences that might result from the delay; for the reason that the railroad yards at Birmingham were in such condition that [325] tlie ear could not have been handled with greater despatch, the freight agent of the defendant at Birmingham having testified that the car “was delayed on account of the large amount of business being handled at that time,” and that it was moved as soon as possible after its receipt, and a yard clerk having testified that “the ear was moved as soon as practicable, and not moved sooner, as stated, because of the congested condition of the yards.” We recognize the rule that a railroad company will not be responsible for delay if the car is transported with as much despatch as possible under the actual circumstances which exist at the time; that is, what would be a reasonable time for the transportation of a car between given points can not be fixed by any invariable rule, but depends, to a large extent, upon the circumstances as they exist at the time that the company attempts to effect the transportation; but a railroad company can not relieve itself from responsibility for delay by simply showing a condition of affairs in regard to its own business which brought about the delay, unless it also appears that the condition of affairs was unprecedented, could not have been foreseen, and therefore was not .due to its fault. Mere proof that ■a car was not promptly transported for the reason that the yards of the company were in such condition that it could not be moved earlier ought not to be allowed as anN excuse for delay, unless it is shown that the company was not responsible for the crowded condition of its yards at that time; that is, that a condition of affairs had arisen which was unusual and with which the company could not deal in the usual manner. It is true that in the case of Smith v. C., C., C. & St. L. Ry. Co., 92 Ga. 539, the grant of a nonsuit was affirmed upon the simple evidence of the yardmaster that the car could not have been delivered sooner,,on account of the crowded condition of the yard. The rule laid down in that case is correct; that is, that the company would not be responsible if they sent the car forward with as much dispatch as possible under the actual circumstances which existed at the time. But we think the rule was inaptly applied; and while we follow the rule, we will not follow the erroneous application of the same, unless the case before us is identical in every particular with that in which the law was erroneously applied. ' The evidence was of such character as to authorize a finding that the railroad company had failed to account for the delay of two days in such a way as to relieve it of responsibility; [326] and while the evidence as a whole is not altogether satisfactory, we do not feel justified in holding that the judgment is entirely unsupported by the evidence. The evidence was of such character as to authorize a finding either way, though the preponderance of 'the evidence seems to be against the judgment. There was some evidence upon which the judgment could be based. Judgment affirmed. All the Justices concur, except Fish, G. J absent. ■