New Orleans, Mobile & Chicago Railroad v. Mauldin , 103 Miss. 244 ( 1912 )

Cook, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Pontotoc county awarding damages to appellee for loss on account of delay to a shipment of live stock.

It is insisted that the record does not show the market value of the stock on the day that it should have arrived at New Orleans, and the market value of the same on the day when it actually arrived at its destination. The following interrogatory was propounded to one of the plaintiff’s witnesses, who was the consignee of the stock: “Cross-interrogatory: Please give the value of this carload of stock actually on the day you say you should have received them, and the day you did receive them, also state the price you sold them at. A. Approximately six hundred and fifty dollars, if they had arrived May 16, 1907, whereas arriving after sales day, May 17, 1907, they were held and retailed seven days thereafter, and netted four hundred, and ninety-two dollars and fourteen cents. I attach copy of eountersales, marked Exhibit B. ” It seems, therefore, that this contention is not sustained by the record.

The maineontention upon which appellant relies for a reversal of this ease is that there was not sufficient proof of negligence on the part of the railroad, and this contention is based upon the theory that the proof shows appellant was prevented by the act of God from delivering the cattle promptly. There was an effort by the railroad company to prove that the delay was caused by an unprecedented rainstorm, resulting in the washing away part of the railroad’s right of way. The only evidence upon that subject is the evidence of one Mr. Crew, a witness for defendant below, and the person who was placed in charge of the cattle by the shipper to see that they were fed at Louisville, and promptly and properly reloaded upon the train. It is true that this witness said there was a washout caused by an unusually hard rain, but upon cross-examination it was developed that the witness had no personal knowledge of the washout, but was simply stating what- the railroad people told him. This testimony was permitted to go the jury without objection from the plaintiff, and, of course, it should have been considered by the jury in making up their verdict. Analyzing the statements of the witness, it is manifest that his testimony does not prove that there was a washout in the railroad. It only established the fact that the railroad people claimed that there was such a washout.

Again, appellant insists that the peremptory instruction directing the jury to find a verdict in favor of plaintiff below for the sum of sixteen dollars and fifty cents, the amount of overcharge for freight, is error. The contract of shipment provides that the carload of cattle should, be delivered in New Orleans for the sum of seventy-five dollars; and, while it may be admitted, if it is shown that the railroad was prevented by the act of God from delivering the cattle over the usual route, and was thereby forced to deliver the same to another carrier, that it would be acquitted, the answer to this is that there is no evidence in the record showing that the failure upon the part of the railroad to carry out its contract was occasioned by the' act of God. The clause in the contract providing, “that, should damage* occur for which the company may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed for a stallion or jack two hundred dollars, for a horse or mule one hundred dollars, cattle thirty dollars, or other animals fifteen dollars,” has no application to the state of facts developed by the record in this case.

We have given this record a very careful examination, and are unable to reach the conclusion that there was any error in the rulings to which exceptions are taken, and therefore the case is affirmed.

Affirmed.