Simmons v. Seaboard Air-Line Railway , 133 Ga. 635 ( 1909 )

Atkinson, J.

This is a suit against a railroad company for damages resulting from a breach of public duty in failing to supply cars for the transportation of freight in car-load lots. The petition does not proceed on the theory that particular freight was actually tendered and the defendant refused to receive and carry it, but the complaint is that the company did not furnish cars. It was alleged that the freight to be transported consisted of lumber, wood, and slabs, and that the demand upon the defendant was “a standing order . . for five cars per day,” but the order did not specify the character of the cars needed, or how many were required for transporting lumber, or how many for wood, or how many for slabs. • It is not alleged that the same character of car would be suited to the purpose of carrying each of the several articles proposed to be loaded on the cars. The character of the business is such, and the duty of furnishing safe cars is such, as renders it necessary for the railroads to know what is to be loaded on the ears, so that they can be provided to suit the occasion. It appears from the petition that lumber, wood, and slabs are different articles, and it might require different kinds of cars in which to carry them. The petition is to be construed most strongly against the plaintiff; and in view of the demurrer and the failure to allege that the same cars were suited to carrying all of the commodities, it may be presumed that different kinds of cars were needed. If they were, then the defendant was entitled to such reasonable notice of the particular kind of ears and the number of each desired as would enable it to suppty the demand. It would be unreasonable to tie up all the equipment of a railroad company to answer the beck and call of one of its customers, without regard to a present necessity therefor; and when a demand is made upon such company for the performance of a public dut}1, the demand should at least be so specific as to reasonably inform the company of what it is expected to do. For the reasons above indicated, we think the demand for cars made upon the defendant, as alleged in the petition, was too indefinite to become the basis of an action for damages for the breach of its public duty, and that the judge did not commit error in dismissing the petition upon demurrer.

Judgment affirmed.

All the Justices concur.