Alabama & Vicksburg Railway Co. v. Sparks

Cooper, J., delivered the opinion of the court. The objection that the proof of value of the animals for the injury of which this suit is brought, does not relate to their value at the point from which they were shipped, which value, under the contract, was to control in case of injury, should have been made in the court below. If this had been done, the plaintiff might, and probably would, have introduced other evidence; and, further, for anything that appears in the record, it may be true that the plaintiff, in testifying, was, in fact, referring to the value of the animals at that place. The point cannot be made here for the first time. George’s Miss. Rig., p. 875, §§ 68-86. The instruction asked and secured by the plaintiff is n'ot accurate, in view of the developed facts. The contract under which the horses were shipped expressly stipulates that the carrier shall not be liable for delay, and it does not appear that, in fact, there was unusual or unreasonable delay. It may be further said that it is evident from the whole facts that, in truth, no-injury was sustained by reason of the mere delay, and that a verdict resting upon that assumption would find no support in the evidence. But, looking to the whole case as developed, we think it clear that the parties and the jury must have understood that the delay meant by the instruction was not the mere failure to transport the car from Vicksburg to Jackson on the day it was received at Vicksburg, but the requirement by the defendant that the plaintiff should load his horses in the evening, and permit the loaded car to be carried from the stock-yards to the train-yard, there [762] to be delayed to await the movement of the train the next morning. It was the course of business to which the plaintiff excepted, and from which he claimed the injury resulted, and not the mere fact that no train left Vicksburg until the following day. The plaintiff was willing to submit to the delay, and so informed the yard-master. "What he objected to and protested against was the requirement that his stock should be put in the car in the evening, there to remain until six o’clock the next morning before the journey would, under the schedule of the defendant, be commenced. The plaintiff contended that this course of business was unreasonable, while the defendant insisted that it had the right so to arrange its trains in the evening because it had no night force, and it would not bo convenient to make up the train in the morning. This was the real controversy, and the court rightly determined it in favor of the plaintiff. The defendant, being a common carrier, was under a duty to transact its business in a reasonable and ordinary manner, and a course of business by which one is required to place animals in a car, there to remain for twelve or'thirteen hours before the departure of a train having a fixed schedule time, is neither reasonable nor lawful. The judgment is affirmed.