State v. Atlantic Coast Line R. Co [4] Relief against an unreasonable and unjust requirement by the commissioners that a train be not discontinued may be had in due course of law; and an unlawful refusal or failure of the respondent to comply with a lawful requirement may also be redressed in the manner prescribed by law for that purpose. [5] The suggestion that the information necessary to the determination of the question whether a train should be discontinued is not accessible to the commissioners except through the respondent does not relieve the commissioners of the duty to supervise and regulate the operation of trains; nor does it deprive them of any authority they have to acquire the information in the way provided by law. [6] The duty here enforced is not an unlawful burden upon or a regulation of interstate commerce, since it is in terms confined to intrastate service; and its effect, if any, upon interstate commerce, is merely indirect, incidental, and immaterial. State v. Atlantic Coast Line Ry., 56 Fla. 617, text 663, 47 South. 969; Southern Ry. Co. v. Atlanta Sand & Supply Co. (Ga.) 68 S. E. 807, and authorities cited. [7] It being clear that the particular regulation here enforced is not management and control of the respondent's railroad operations, but that it is lawful supervision and regulation, no testimony upon the subject is required. This proceeding is to enforce as required by law an order of the Railroad Commissioners, who have full statutory powers if direct supervision and regulation of the initial discretion vested in the railroad company for the operation of the railroad; and it is not a case in which the court is asked to substitute its discretion for that of the respondent in the operation of trains. The return is insufficient, and a peremptory writ of mandamus will issue when requested in due course. SHACKLEFORD and COCKRELL, JJ., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. LOWRY V. ATLANTIC COAST LINE R. Co. (Supreme Court of South Carolina, April 4, 1911.) [70 S. E. Rep. 806.] Carriers Carriage of Freight-Connecting Carriers-Injuries to Freight-Actions-Burden of Proof.*-When goods delivered to an initial carrier in good order are delivered to consignee by the terminal carrier in bad order, the burden is on the latter to prove that he delivered them in the same condition he received them, and that he did not receive all the goods delivered to the initial carrier. Carriers-Carriage of Freight-Loss of Freight—Action—Submission to Jury.—In an action against a terminal carrier for loss of and damage to goods shipped to plaintiff, evidence held to require the submission of the question of defendant's negligence to the jury. Appeal from Common Pleas Circuit Court of Sumter County; Ernest Gary, Judge. Action by E. A. Lowry against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed. L. D. Jennings, for appellant. Willcox & Willcox and Mark Reynolds, for respondent. HYDRICK, J. Plaintiff sued to recover damages for the loss of certain articles and damage to others contained in a car load of household goods shipped to her from Henrietta, Tex. The bill of lading contained a list of the goods, and acknowledged them to have been in apparent good order when received by the initial carrier. At Augusta, Ga., they were transferred from one car to another, which was sealed and delivered_to defendant for transportation to destination, Sumter, S. C. Defendant's testimony tended to show careful handling of the car while in its possession, and that the seals were not broken until arrival at Sumter, where the goods were unloaded into its warehouse, whence they were delivered to plaintiff. The agent of the Central Railroad of Georgia, who superintended the transfer at Augusta, testified that the goods were badly damaged before they were delivered to defendant; that he noted an exception that they were "all scratched," and also noted a number of pieces that were broken. He could not say whether there was any shortage or not, because he had no list, nor did he *See foot-note of Jenkins v. Atlantic C. L. Ry. Co. (S. C.), 37 R. R. R. 203, 60 Am. & Eng. R. Cas., N. S., 203; last head-note of Gibson v. Little Rock, etc., Ry. Co. (Ark.), 35 R. R. R. 690, 58 Am. & Eng. R. Cas., N. S., 690; first head-note of Kansas City Southern Ry. Co. v. Carl (Ark.), 35 R. R. R. 406, 58 Am. & Eng. R. Cas., N. S., 406. Lowry v. Atlantic Coast Line R. Co make a list of the goods put into the car which was delivered to defendant. Plaintiff's testimony tended to show that the goods were more badly damaged and more pieces were broken when delivered to her than appeared from the notation of the agent at Augusta ; and also that at least one piece-a kitchen table-was received by defendant which was not delivered to her. The defendant voluntarily paid for repairing a number of pieces, among them being some which had not been noted as broken by the agent at Augusta. Wil From the foregoing general outline of the testimony, it clearly appears that the circuit court erred in directing a verdict for defendant. When it appears that goods were delivered to the initial carrier in good order, and they are delivered to consignee by the terminal carrier in bad order, the law imposes upon the latter the burden of proving that he delivered them in the same condition that he received them, for in such a case the presumption is that they were damaged while in his possession. lett v. Railway, 66 S. C. 477, 45 S. E. 93; Walker v. Railway, 76 S. C. 308, 56 S. E. 952. To be sure, the presumption may be rebutted; but, as pointed out, defendant's testimony fell short of doing so. The presumption is not only that defendant received the goods in the same condition as when delivered to the first carrier, but also that it received the entire shipment. Walker v. Railway, supra, and cases cited. The burden was therefore on defendant to show that it did not receive all the goods delivered to the first carrier, which it could not have done by showing exactly what it did receive. Charles 7. Railway Co., 78 S. C. 36, 58 S. E. 927, 125 Am. St. Rep. 762. It did attempt to show that it it delivered all that it it received by showing that it received the car under seal, which was not broken until arrival at destination, where the goods were unloaded into its warehouse, and that they were afterwards delivered to plaintiff. This, however, was not conclusive; for, as pointed out, the testimony of defendant's agent tended to show that a certain table was taken from the car and out into the warehouse, and plaintiff's testimony was that it was never delivered to her. Now, if the table was lost from the warehouse, a reasonable inference might have been drawn that other missing articles were also. Besides, the voluntary payment for repairs to the broken furniture was evidence of an admission of liability which required submission of the case to the jury. Reversed. JONES, C. J., and GARY and WOODS, JJ., concur. SPIZALE v. LOUISIANA RY. & NAVIGATION CO. (Supreme Court of Louisiana, Feb. 13, 1911. March 27, 1911.) [54 So. Rep. 714.] Rehearing Denied Railroads Operation of Trains-Negligence. Where it was not customary for a railroad company to ring the bell or sound the whistle while switching in a yard, except when passing street crossings, the omission to do so on a particular occasion was not actionable negligence toward one familiar with the movements of the trains in the yard. Railroads Operation of Trains-Lookout. In an action against a railroad company for injuries to a trespasser on the track, struck by an engine, evidence held not to show a failure of the engineer to keep a reasonable lookout. Railroads Injuries to Trespassers on Track-Liability.*—A_railroad company, occupying for its tracks and terminals a strip of ground over which no street crosses for 2,711 feet, does not owe any duty to a trespasser to cover a drain on the strip. Railroads Trespassers-Liability. A railroad company owes to a trespasser only the general duty to keep a reasonable lookout in moving its trains, and not to run over him after having seen him. (Syllabus by Editorial Staff.) Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge. Action by Mary B. Spizale, on her own behalf and in behalf of her infant son, against the Louisiana Railway & Navigation Company. From a judgment for plaintiff, defendant appeals. Reversed, and action dismissed. Foster, Milling, Brian & Saal, for appellant. PROVOSTY, J. The plaintiff's little son, 11 years old, was run *For the authorities in this series on the subject of the duties and liabilities of railroad companies with respect to licensees or trespassers on railroad premises, see first foot-note of Louisville & N. R. Co. v. Morgan (Ala.), 36 R. R. R. 318, 59 Am. & Eng. R. Cas., N. S., 318; third head-note of Conchin v. El Paso, etc., R. Co. (Ariz.), 36 R. R. R. 192, 59 Am. & Eng. R. Cas., N. S., 192. For the authorities in this series on the subject of the care due licensees or trespassers on railroad tracks before their presence is discovered, see last foot-note of Chicago, etc., Ry. Co. v. Smith (Ark.), 37 R. R. R. 51, 60 Am. & Eng. R. Cas., N. S., 51; third headnote of Chesapeake & O. R. Co. v. Lang (Ky.), 36 R. R. R. 630, 59 Am. & Eng. R. Cas., N. S., 630; last paragraph of foot-note of Chesapeake. etc., Ry. Co. v. Ball (Ky.), 35 R. R. R. 238, 58 Am. & Eng. R. Cas.. N. S., 238; second foot-note of Chesapeake, etc., Ry. Co. v. Corbin (Va.), 35 R. R. R. 229, 58 Am. & Eng. R. Cas., N. Š., 229. Spizale v. Louisiana Ry. & Navigation Co over by a switch engine of the defendant company, and both his legs cut off; and plaintiff, in her child's behalf and also in her own, sues in damages. After the defendant's road, on its way into the city and towards the river, has crossed Napoleon avenue, it enters upon a strip of ground belonging to the city, but of which by grant from the city the defendant company has the perpetual use for its tracks and terminals. This strip of ground is along the downtown embankment of the New Basin Canal. Along the base of the embankment there used to be a wide drainage canal. The defendant company has filled in this old canal for a considerable distance, beginning, we may say, at Carrollton avenue and going towards the river, and built a long narrow warehouse upon the site. Beyond this warehouse, in the direction of the river, the old canal still exists and is usually full of water. The tracks are alongside of this warehouse and old canal. There are three of them-one main track and two side tracks. They are 13 feet apart from center to center. On the other side of them, 12 feet from them, is the fence of the White City amusement park and baseball grounds and a continuation of this fence. From Carrollton avenue to Hagan avenue, a distance of 2,711 feet, no street crosses this strip of ground, and only one street opens upon it and only on one side. The tracks are constructed as in the open country; that is to say, the earth is raised to the top of the cross-ties along the center of the track between the rails, and sloped towards the sides, so that the ends of the cross-ties are not filled between. As an effect of this construction, there is a depression between the tracks, and drains. have had to be provided across the tracks for letting out the drainage water. A freight train of 20 cars and a locomotive came across Carrollton avenue going towards the river, on the main track; the locomotive pushing the cars with its head end towards them. When the forward end of the train reached the first switch, which is about 1,500 feet from Carrollton avenue, six of the cars were kicked down the main track. The train then stopped and remained stationary about one minute. The forward end, from which the six cars had been detached, had gone one car length beyond the switch. As the next two end cars had to be switched to the side track, the train backed far enough. to clear the point of the switch, or about two car lengths, and then moved forward again far enough to put the two cars upon the side track, and again stopped. At the time the train began to move forward this last time to put the two cars upon the side track, the fireman, who was sweeping the coal dust on the floor of the engine, heard a noise, which he calls a scream, but which, on cross-examination, he described as follows: 41 R R R-17 |