Saunders Bros. v. Payne , 29 Ga. App. 615 ( 1923 )

Bell, J.

The plaintiff in error sued J. B. Payne, agent of the United States railroad administration, operating the Atlanta, Birmingham & Atlantic Bailroad, for damage alleged to have occurred to a carload shipment of bananas, by reason of the defendant’s negligence during its transportation over the line of the defendant, as the last connecting carrier. The shipment originated at Mobile, Ala., and its destination was Fitzgerald, Ga., under a special contract of affreightment in which the Fruit Dispatch Company was the consignor and the plaintiff was the consignee. The bill of lading was an open or straight bill. The defendant’s negligence was alleged to have consisted (1) in a failure to deliver within a reasonable time after the shipment had been received upon its line, and (2). in refusing to honor instructions of the plaintiff as the consignee, in respect to ventilation. The defendant denied the allegations of negligence and contended that after receiving the shipment the defendant handled it with despatch; that the defendant followed the instructions given by the consignor at the beginning of the shipment, and was not required to take any later or further instructions from the consignee. At the close of the evidence a verdict was directed by the court in favor of the defendant. The plaintiff excepted to a later judgment overruling a motion for a new trial.

' The evidence was such' as to raise issue's for determination by the jury, upon both of the allegations of negligence hereinbefore referred to, and the direction of a verdict for the defendant was error. Another ground of negligence, not yet specifically mentioned, was that the carrier failed to notify the plaintiff promptly of the arrival of the shipment, as it was claimed by the plaintiff the carrier should have done under an alleged universal custom; but upon this point there was not sufficient evidence to raise any issue.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.