Pennsylvania Railroad v. Goetchius & Caperton

Holden, J.

After having issued and levied an attachment against a nonresident railroad company, consignors filed a declaration in attachment, making substantially the following allegations: The plaintiffs shipped from Rome, Ga., to named consignees in New York City, by way of the Southern Railway Company, a car-load of peaches, which was delivered by that company to the defendant, and the latter carried- the peaches to their destination, where they arrived in good condition ■ on July 30th. The defendant gave the consignee no opportunity to unload the ear the day of its arrival, but it was sent to Jersey City, where it was allowed to remain without icing, or any steps taken to prevent decay of the fruit, until the 1st day of August. The failure of the defendant to deliver the car promptly on the day of arrival, or to ice it, was the cause of the peaches becoming unmarketable, and the consignees • refused' to accept them when finally notified by the defendant that the car was ready for unloading. The peaches were lost to the plaintiffs, and they sued to recover their value. Held:

September 26, 1910.

Attachment. Before Judge Edwards. Floyd superior court. March 30, 1909.

George A. II. Harris & Son, for plaintiff in error. Lipscomb, Willingham & Loyal, contra.

1. If the value of the peaches was lessened because of becoming unsound by reason of natural deterioration while in the possession of the defendant, without any fault on the part of the defendant, it would not be liable in damages to the plaintiffs because of such injury, though it occurred without fault of the consignees.

(a) As the evidence authorized the jury to find that the peaches thus suffered injury while in the possession of the defendant, without fault on its part, it was error to charge: “If, while these peaches were in the possession of the defendant company, you find that they were damaged, and without fault on the part of the consignee, Goetchius & Co., of New York, either for the want of payment of freight or otherwise, they became damaged, then the plaiñtiffs can recover the extent of such damages.”

2. No other error appears from any of the assignments of error, requiring a new trial. Judgment reversed.

All the Justices concur.