Burnham v. Alabama & Vicksburg Railway Co.

Citations

• 81 Miss. 46

Syllabus

<p>1. Railroads. Unprecedented flood. lives .of employes. Perishable freight.</p> <p>In the transportation of perishable freight a railroad company is not under duty to incur the hazard of moving its trains over a part of its track the safety of which has been rendered uncertain by a recent unprecedented flood, and no liability for delay attaches in such case until it has had sufficient opportunity to make sure of the safety of the tracks by examination and needed repairs.</p> <p>3. Same. Work train.</p> <p>The fact that a railway engine, work train and crew have passed over a track, overflowed by an unprecedented flood, to see to its safety and make needed repairs, in no way affects the propriety of delaying the movement of freight and passenger trains until the safety of the track has been assured.</p> <p>3. Same. Train-dispatcher. Evidence. Peremptory instruction.</p> <p>The inference of negligence arising from delay by a railway company in the transportation of perishable freight is overcome by the uncontradicted testimony of its train dispatcher that the train carrying the freight, which had been stopped in transit by an unprecedented overflow of its track, had been moved forward to destination as soon as it could have been safely done.</p> <p>4. Same. Opinions. Conjectures. Witnesses.</p> <p>Mere conjectures or opinions of a witness are not sufficient in themselves to forbid the granting of a peremptory instruction to a party otherwise entitled thereto.</p> <p>5. Same. Restored track. Burden of proof.</p> <p>While a railroad company is excusable for delay in the carriage of freight, caused by damage to its track from an unprecedented flood, the burden of proof is on it to show due care to transport the goods within a reasonable time after the track is repaired.</p> <p>6. Same. Insurer.</p> <p>A common carrier is not an insurer against delay in the transportation of goods which it actually delivers.</p>