Alabama & Vicksburg Railway Co. v. Searles

Cooper, J., delivered the opinion of the court. This case, as developed on the last trial in the lower court, presents in its principal issue no materially different aspect from that presented when it was first tried, and, upon an appeal then prosecuted, it was held by this court that a peremptory instruction for the defendant could not.be supported, because there we,re disputed facts on which the jury might find for the plaintiff’. Searles v. Railway Co., 69 Miss., 186. The peremptory instruction asked by the appellant was properly refused. The action is one to recover for injury to three car-loads of oats shipped by the plaintiff from Vicksburg, in this state, to purchasers in Atlanta, Ga., and all the evidence tends to prove that the injury was caused by the oats being exposed to rain, either before they were shipped or while in transit. The shipments were made under special contracts with the defendant company, by which all responsibility on its part (except as to the guaranty of the rates of freight) ceased upon delivery of the freight to the connecting-carrier, which was the Alabama Great Southern Railroad, connecting with the defendant company at Meridian, Miss. The declaration is not framed with reference to the contract actually made between the parties, but is framed as upon a contract of the defendant to cany the oats from Vicksburg to Atlanta, and the breach is alleged in these words : “ Yet, the plaintiff says that, notwithstanding its promises and liability in the premises, said defendant, by its carelessness, negligence and disregard of its duty as a common carrier, failed and neglected to deliver said three cars of oats in a safe and sound condition, but delivered the same in a damaged condition, and after long and unreasonable delays, although the same had been delivered in a good and sound condition. The said oats were damaged, as aforesaid, while in the custody, of the said defendant, by becoming wet, moldy, rotten and unsound through the want of proper care and attention on the part of the defendant.” On the trial of the cause, the jury having been impaneled, [749] it was admitted by counsel for ihe plaintiff, in open court and to the jury, that there was no rain-fall before the cars were delivered to the connecting line at Meridian, Miss., and it was admitted by counsel for the defendant that rain began to fall after the cars were so delivered at Meridian, and fell to the extent of two inches before the cars reached Atlanta. The record makes it entirely certain that, upon the question of the liability of the defendant for the damage to the oats, the whole controversy was made by the parties to turn upon the inquiry whether the cars supplied by the defendant were safe and suitable for the transportation of the oats, and whether they were damaged in transit or had been exposed to rain before shipment. Among other instructions asked by the defendant is one— the eleventh — by which the court was asked to charge the jury that, “ unless the evidence proves that the damage to the oats occurred while they were in the hands of the Alabama & Vicksburg Bailway — that is, after the delivery to said railway in Vicksburg, Miss., and before the delivery to the connecting line at Meridian — the jury will find for the defendant.” This instruction was refused, and its refusal is now assigned for error. In support of this assignment of error, it is contended for the appellant that the plaintiff, by his declaration, sought recovery only for injury done to the oats “ while in the custody of the defendant,” and that, even if the evidence would warrant a recovery for an injury occurring after the oats had been delivered to the connecting carrier, but by reason of defective cars supplied by appellant, no such recovery should be allowed in this case, because no suit has been brought therefor. Ve are of opinion that the instruction was rightly refused by the trial court. By the admissions made by counsel for both the plaintiff and the defendant at the opening of the trial, and the course and tendency of the whole evidence, it is evident that the trial proceeded upon the single inquiry whether the ears supplied by the defendant company were [750] suitable for the transportation of the goods being carried. No objection was taken by the defendant to the testimony of' the plaintiff, and it inet or attempted to meet the question to which the plaintiff’s evidence was directed, by attempting to prove that the cars were safe and suitable. The declaration of the plaintiffavers that, “notwithstanding its promises- and liabilities in the premises, said defendant, by its carelessness, negligence and disregard of its duty and responsibility as a common carrier, failed and neglected to deliver said three cars of oats in a safe and sound condition, but delivered the same in a damaged condition.” It is true, the further averment was made that the injury occurred while the oats were in the custody of the defendant, but, since a failure by the defendant to supply safe and suitable cars was, of itself, a breach of its duty, falling fairly within the scope of the precedent averment in the declaration, the unnecessary statement in the subsequent clause, that the injury was sustained while the oats were in the custody of the defendant, by which averment the defendant was manifestly not misled, could not restrict the right of the plaintiff to a recovery for injury occurring while the goods were in the custody of the first carrier. The question is not one of variance between the pleadings and the proof, nor of the failure of the evidence to sustain the averments of the declaration, but it is one of an ambiguously stated cause of action interpreted by the course pursued by both parties on the trial. If the defendant’s construction of the declaration here was the-one he intended to insist upon in the trial court, the admission of plaintiff’s counsel that no rain had fallen between the shipment of the oats and their delivery to the connecting carrier at Meridian, indicated that no further evidence was admissible for the plaintiff, and he should have raised the point by an objection to the evidence when offered, instead of joining in the investigation and withholding his challenge of the plaintiff’s case until the court was instructing the jury. We are satisfied, from the whole record, that the defendant was [751] not surprised by the case as developed by the plaintiff, and it is in that view alone that the objection he now makes could be sustained. The tenth instruction asked by the defendant was properly refused. The court, by admitting the evidence to which it relates, had passed upon its competency, and it was quite proper to decline to express any opinion as to the effect or tendency thereof. There was no error in modifying the third and fourth instructions asked by the defendant. If the defendant was unfortunately so situated that the best evidence it could produce was insufficient to maintain on its behalf the issue joined, that was its misfortune; but the fact that it could not reasonably have been expected to have more satisfactory evidence could neither strengthen that' it had, nor change the rule which requires evidence sufficiently strong to satisfy the jury. In effect, the first instruction for the plaintiff was that the defendant was bound, as a common carrier of the goods, so long as they were in its custody and being transported, and, that, as to the cars supplied, this liability continued throughout the journey, unless the condition of the cars was changed after they had been delivered to the connecting carrier ; and this was correct. It was the duty of the carrier to supply suitable and proper cars; and, for a failure in this respect from which injury resulted, the defendant was liable. There was nothing in the contract of carriage by which the common law liability of the carrier was limited, and it was therefore bound, as an insurer, to supply safe and suitable cars. Hutch. on Carriers, § 293; The Caledonia, 43 Fed. Rep., 681; Sloan v. Railway Co., 58 Mo., 220. The exception taken by the defendant to the testimony of the plaintiff as to the value of oats at Atlanta cannot be sustained. The plaintiff was engaged as a dealer in goods of this character, and was advised, as he states, of their value at Atlanta by the current market reports and quotations, and by the actual sales he made of the oats for injury to [752] which, this suit is brought. He was therefore a competent witness in this respect. Sisson v. Railroad Co., 14 Mich., 489; Sutherland on Dam., § 654; 2 Rice on Evi., § 553; Brackett v. Edgerton, 14 Minn., 174; 100 Am. Dec., 211. The price at which the damaged oats were sold, after a fair trial to obtain the best price, was competent evidence of their value. We suppose there was no market value for such articles; and the value of an article not quoted on the markets, and not dealt in generally, is best shown by what it brings at a fair sale. Sullivan v. Lear, 23 Florida, 463; 2 Rice on Ev., § 552. The judgment is affirmed.