Young v. Southern Railway Co.

AlleN, J.

There are fourteen assignments of error, six of which relate to tbe rulings on tbe evidence, and of these, with possibly one exception, tbe same witness bad, before the exception was taken, testified to tbe fact admitted or excluded, and therefore, if error was committed, which we do not find to be so, tbe defendant was not prejudiced thereby.

Tbe assignment of error, which may be an exception, is to a part of tbe evidence of one of tbe plaintiffs, John A. Young. He testified, among other things, in reference to tbe Williams-burg shipment: That be bad orders from customers for both shipments ;• that .the orders were obtained by traveling men on salary, with their' expenses paid; that W. J. Thompson bad interest in tbe money collected in both cases; that tbe goods shipped' to Williamsburg had been sold for $908.08; that tbe interest would run from 2 November, 1907; that none of tbe Williamsburg shipment was delivered, and that be bad a conversation with Mr. Devlin, the agent of the defendant, about the shipment to Williamsburg, and told him that it bad not arrived and asked bim to look it up and tbat if he did not get it promptly in good condition' that he would refuse the shipment, and he replied that he would have it looked up at once; that that was on the 2d or 3d day of November, 1907; and was then asked the following question:

Q. What date were your customers to be there to receive these goods? A. At Williamsburg on 2 November.

We think this evidence was competent to meet one of the contentions of the defendant, that the plaintiffs were negligent in not being ready to receive the trees at Williamsburg, and particularly so as it introduced one of the orders for trees of a customer of the plaintiffs 'requiring the trees to be delivered at Williamsburg in October, November, or December, 1907, and notice to be given by mail of date of delivery.

The defendant also excepted to the following portions of the charge:

1. If the plaintiff called for them, called for them within a reasonable time and made a reasonable effort to receive them if they reached there within a reasonable time, then he was not required to stay there until they did come, unless he had some notice as to when they would arrive; but if he made a reasonable effort to get them, and they did not arrive within a reasonable time, and they were lost to him on that account, then he would be entitled to recover damages, but otherwise he would not be.

2. So if you answer the first issue and the fourth issue— that is, the issue as to the reasonable time — if you answer that “Yes,” you will go to the next issue, “Was the property of the plaintiff injured by reason of said failure of the defendant to transport within a reasonable time?” And if you answer that “Yes,” you will go to the last issue and answer, “What damages, if any, has the plaintiff sustained?” If you answer the first issue “No,” you need not go any further, but return your verdict ;■ and the same rule applies to the fourth, fifth, and sixth issues — that is, as to the Tappahannock shipment.

The criticism of the first part of the charge set out, as shown in the brief of the appellant, is “that his Honor should have charged, the jury that even if the goods did not arrive within a reasonable time, it was the duty of the plaintiff to remain at Williamsburg a reasonable length of time, or to have made arrangements with some other person to receive and examine the goods when they did arrive, in order to mitigate, if possible, the damages. He should have further given to the jury the converse of the proposition, and stated that if the plaintiff did not call for. the goods within a reasonable time and did not make a reasonable effort to receive them if they had reached there within a reasonable time, he would not be entitled to recover damages.”

We think the converse of the affirmative charge was given in the language, “but otherwise he would not be,” which can only mean that if the plaintiff did not call for the trees within a reasonable time and did not make a reasonable effort to receive them, the defendant would not be liable; and the charge also presents the view of the defendant, .that it was the duty of the plaintiff to use reasonable effort to receive the trees.

We can see no possible objection to the other portion of the charge. It is no more than an explanation to the jury of the relation of the issues to each other.

The remaining assignments are to the failure to state to the jury any rule as to the measure of damages, and this would be fatal and would entitle the defendant to a new trial if it did not appear from the record that there was no controversy between the parties as to the true rule, and that they agreed in the presence of the jury, and with the sanction of the court, as to what it was.

The record states that during the trial, in the presence of the jury, when the plaintiff was offering evidence as to damages, the counsel for the defendant objected to the evidence and stated the rule as to damages to be the difference in value between the price at which the goods were sold, or rather the market price of the goods when delivered to' defendant, and the actual value at the time they were alleged by plaintiff' to have been damaged by the negligence of the defendant. The court Stated that it so understood the rule as to damages, and thereupon the counsel for the plaintiff said he would agree that that was tbe rule, and tbe court said, “Let tbat be understood,” and tbe argument was conducted accordingly.

Tbe jury could not have been misled wben tbe agreement was made before them and tbe court said, “Let tbat be understood as tbe rule of damages.”

Upon an examination of tbe record, we find

No error.