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Susong v. Florida Cent. & P. R. Co

was given, and that the goods were in fact not in good order when received. The company may in such a case show, when sued by the consignee, either that the goods were delivered to him in exactly the condition in which they were received from the other railroad company, and that their damaged condition was not due to any act on the part of the defendant or its agents, or that they had become damaged after shipment, without fault on the part of any of the carriers. See Forrester v. Railroad Co., 92 Ga. 699, 19 S. E. 811, 2 Am. & Eng. R. Cas., N. S., 648; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 523, 7 S. E. 916, 2 L. R. A. 102 (2). The defendant company having received the car load of horses from the Southern Railway Company at Columbia without exception, there was a presumption that they were received as in good order; and, so long as this presumption prevailed, the onus was upon the defendant to account for the horse which was missing when the car arrived at Savannah, and to explain the injuries to the horse which was then in a damaged condition. There was evidence from which the jury could find that this presumption was rebutted, that the missing horse was not in the car when it was delivered to the defendant company at Columbia, and that the damaged horse was in that condition when it was received by the defendant at that point. Such being the case, a finding in favor of the defendant was authorized. The special contract which was entered into between the plaintiff and the Southern Railway Company in behalf of itself and its connecting carriers was, so far as the stipulations above referred to are concerned, a valid and binding contract. Boaz v. Railroad Co., 87 Ga. 463, 13 S. E. 711; Steamship Co. v. Paige, 108 Ga. 296, 33 S. E. 969; Cooper v. Railroad Co., 110 Ga. 659, 36 S. E. 240, 18 Am. & Eng. R. Cas., N. S., 412, and cases cited. There was evidence from which the jury could find that if the plaintiff had accompanied the stock upon the train upon which it was transported, or had had upon that train some one representing him, in charge of the stock, the plaintiff or such representative would have been able to have prevented the loss of the horse which was missing, and the substitution of another horse of inferior quality, which seems to have been done. The presence of the plaintiff, or some one representing him, at the place where the car was unloaded and reloaded, would have undoubtedly prevented the commission of the fraud which appears to have been perpetrated upon the plaintiff in this case, by taking from among the horses a valuable horse, and substituting another of comparatively little value in its place. It is just such risks as this that the contract is intended to cover, and the plaintiff's loss in the present case can be directly accounted for by his failure to be present when the car was unloaded and reloaded along the route, or a failure to have some one representing him to see that all of the horses which were delivered at

Susong v. Florida Cent. & P. R. Co

There

Newport, Tenn., were each time placed in the car. was also evidence from which the jury could find that the injury to the horse which was damaged resulted from the incidents of transportation, which were stipulated against in the special contract entered into by the plaintiff. The verdict for the defendant being amply supported, the judgment refusing a new trial will not be interfered with unless there was some error of law requiring a reversal of such judgment.

Complaint is made that the court erred in refusing to give certain requests which are set out in certain grounds of the motion for a new trial, and error is assigned upon different portions of the charge. A careful examination of the charge, which is contained in the record, discloses, we think, that the case was fairly submitted to the jury; and, if there were any errors at all in the charge, they were not of such a character as to require the granting of a new trial. The requests which were refused were, so far as they were legal and pertinent, substantially covered by the charge. It was argued that because the agent of the Southern Railway Company at Newport, Tenn., delivered to the plaintiff, at the time the contract was signed, a pass to go upon a train other than the freight train upon which the stock was transported, this was a waiver on the part of the railroad company of that stipulation in the contract which provided that the plaintiff, or some one representing him, should accompany the stock upon the freight train. Even if the agent had the right to make any such waiver, the delivery of the pass would not have this effect, though accompanied by an express oral understanding at the time that plaintiff need not go upon the freight train, for the simple reason that all antecedent or contemporaneous oral agreements between the parties would be merged in the writing; and, in addition to this, there is nothing inconsistent in the agreement alleged to have been made by the agent with the plaintiff, and his undertaking to either accompany the stock himself, or have some one else to do so, as his representative. Even if the plaintiff was himself relieved from accompanying the stock, he was still under obligation to have some one else, representing him, do so. It was further argued that upon proof of loss of one animal, and of damage to another, a presumption arose against the defendant that it was negligent. This is true, but this presumption is subject to be rebutted, and there was evidence from which the jury were fully authorized to find that it was rebutted in the present case. There was no error requiring the granting of a new trial.

Judgment affirmed. All the justices concurring, except LEWIS, J., absent on account of sickness.

FT. WORTH & D. C. Ry. Co. v. BEAUCHAMP.

(Supreme Court of Texas, May 26, 1902.)

[68 S. W. Rep. 502.]

Car of Explosives-Delay in Delivery-Nuisances*-Liability for Injury to Adjacent Property.

Where a railroad company, by failing to use ordinary care, allows a car of explosives to be unnecessarily or unreasonably delayed at a station, or fails to use ordinary care in keeping or caring for such car, it creates a nuisance rendering the company liable for damages resulting to adjacent property from an explosion thereof.

Same-Same-Same-Same-Evidence.

Where there is evidence, in an action against a railroad for damages resulting from the explosion of a car of explosives, that the company was negligent in allowing the car to be delayed, or in failing to properly guard it, the question of the negligence of the company in such respects is for the jury.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by W. H. Beauchamp against the Ft. Worth & Denver City Railway Company, for injury caused by the explosion of a car load of explosives. From a judgment for plaintiff the defendant appealed to the court of civil appeals, which certified questions to the supreme court. Questions answered.

Stanley, Spoonts & Thompson and Robert Harrison, for appellant.

Jas. A. Graham and Speer & Speer, for appellee.

WILLIAMS, J. This case comes before us upon questions certified by the court of civil appeals for the second district. The action was begun by appellee to recover of appellant for damages done to appellee's residence by an explosion of dynamite or powder in a car belonging to appellant. The facts found by the trial judge, and his conclusions therefrom, are as follows: "(1) I find that on the 5th day of April, A. D. 1901, the plaintiff resided in Montague county, Texas, and was the owner of a tract of land, with the residence house thereon, situated in the suburbs of the city of Bowie, in said county. (2) That on and prior to the said 5th day of April the defendant was a railway corporation owning and operating a line of its road through said city of Bowie. (3) That on the 3d day of April, 1901, the Chicago, Rock Island & Texas Ry. Co., which company also owned and operated a line of its

*Carrier not bound to receive certain goods, see Nitro-Glycerine Cases, 15 Wall. (U. S.) 524; Boston, etc., R. Co. v. Shanley, 107 Mass. 568.

Duty to give carrier notice, see Boston, etc., R. Co. v. Shanley, 107 Mass. 568; Barney v. Burstenbinder, 64 Barb. (N. Y.) 212; Standard Oil Co. v. Tierney, 92 Ky. 367, 49 Am. & Eng. R. Cas. 117. Criminal liability, Herne v. Garton, 2 El. 66, 105 E. C. L. 66; Farren v. Barnes, 11 C. B. N. S. 553; Williams v. East India, 5 East 192; Alsten v. Herring, 11 Exch. 822, L. R. 5 Exch.

Ft. Worth & D. C. Ry. Co. v. Beauchamp

road through said city of Bowie, and was a connecting carrier with defendant, brought into the vicinity of said city a car containing 28,200 pounds of blasting powder and giant powder, and delivered to defendant said car of powder on said day, taking its receipt therefor, and left the said car upon a transfer switch in the charge and under the control of the defendant. (4) That said car of powder was contained in a single wooden box car, closed up, with no covering or sheeting of iron or other metallic material, but was otherwise of comparatively recent construction, and was in good condition and not differing from those in ordinary use by railway companies generally; that the manner of the storing of said powder within said car was not shown. (5) That from said date of the receipt of said car until the date of the explosion, as hereinafter found, it was permitted by defendant to stand upon its transfer switch connected with two empty box cars to the north or west, and a car of hay immediately to the south or east, and yet another car, with contents not shown, to the east or south; that the car immediately to the north or west of said car of powder and connected therewith was an empty box car in which was some hay from Kaffir corn scattered about the floor, the door of which car was standing open. (6) That said transfer upon which said cars stood was of length sufficient to hold thirteen cars, and was situated at the intersection of the said C., R. I. & T. road with the defendant, which said intersection was upon the line of the incorporation of said city, but the switch on which the car was standing was outside of the corporation; that said cars stood about the center of said switch and within a radius of onefourth mile of some forty residence houses, and within a radius of three-fourths of a mile of the greater portion of the residence and business houses of said city, said city having a population of about twenty-six hundred inhabitants; that a public road or highway ran within a few feet, and the main line of the defendant within about twenty feet, and that of the C., R. I. & T. Ry. within about two hundred feet, of where the said car of powder was permitted to stand, and, further, that there were scheduled to pass said point, upon said two roads, sixteen trains daily, besides extras. (7) I find that defendant placed no guard or watch about said car of powder, that its contents was known to the agent who receipted for said car, and that there was placarded upon the walls of said car the following, viz.: 'High Explosives. Handle with Care'; and, further, I find that the locality where said car was permitted to stand was one frequented by tramps, who were in the habit of building fires, and entered into the empty cars left standing thereabouts. I find that on as many as two occasions, while said car was upon said switch, an employee of defendant inspected said cars, the last time being about nine o'clock a. m. on the morning of the explosion, as hereinafter found, going within two hundred feet

Ft. Worth & D. C. Ry. Co. v. Beauchamp

for such purpose. (8) I find that defendant permitted said car of explosives to stand, situated as herein before stated, upon said switch, from the date of its receipt till about 9:47 a. m. of the 5th day of April, at which time it exploded; that there were two scheduled freight trains daily upon the line of defendant, and that trains passed in the direction said car was billed to go after its receipt and prior to its explosion; and that other cars placed upon said switch on the day preceding said explosion were by defendant picked up and carried away in the direction in which said car of explosives was billed. (9) That on the morning of the 5th of April, about thirty minutes before the final explosion, a fire was discovered to have originated in the empty box car immediately to the north or west of said car of explosives; that at said time the doors upon both sides of said cars were open; that the fire was communicated from said car to the wooden car containing said explosives, violently exploding the same and injuring and damaging the property of plaintiff as hereinafter found. (10) I find that the place where said car was left standing and where said explosion occurred was distant from the property of plaintiff about eight hundred yards. (11) I further find that, by reason of said explosion, plaintiff's property described in his petition was injured and damaged in the sum of nine hundred and ninety-five dollars, that it will cost the said sum of nine hundred and ninety-five dollars to repair the said injuries occasioned by said explosion, and that plaintiff's said property is worthless by said amount by reason of said explosion and said injuries, and that no portion of said amount has ever been paid to plaintiff. (12) I find also, as a matter of fact, that the receiving and storing of such quantity of explosives in the manner, for the time, and in the locality as shown, by the defendant, constituted a public and private nuisance. (13) I also find as a fact that defendant was guilty of negligence in receiving, storing, and handling said car of explosives as it did, and in permitting said explosion, and that said negligence was the immediate and proximate cause of said explosion and injuries, and but for which negligence said explosion and injuries would not have occurred."

The court of civil appeals propounds the following questions: First, whether or not the facts found by the trial judge warranted the legal inference of nuisance. Second, whether or not those facts afford any evidence of negligence. Third, whether or not, if the acts of defendant constitute negligence, the damage to appellee was the proximate result thereof.

The answer to the first question, we think, will be found by a decision of the second; for it is not contended, and cannot be held, that the mere fact that a railroad company has in its cars, for transportation, explosives of this character, makes it guilty of creating a nuisance, either public or private, even though danger to persons or property along its line be necessarily incident to such transportation. Such articles

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