#### The Columbus and Western Railway *vs.*Flournoy & Epping.

1. The measure o£ damages against a carrier, when he fails to deliver goods in a reasonable time, in the absence of a special contract, is the difference in the market value of those goods, when actually delivered, from their value if delivered in a reasonable time. Where there was no special contract sued on or proved, it was error to admit evidence to show that the consignees had bargained off the cotton shipped at three-eighths of a cent per pound over the market price, if they could have received it within a reasonable time, though the carrier knew nothing about that bargain, was not informed of it and not in privity with it at all.

2. Whether goods shipped are delivered by the carrier within a reasonable time is a question of fact for the jury, and depends on the facts of each case, including the time ordinarily required for carriage between the two points, the preparations made by the carrier, whether ample or not, the effort at dispatch, the information given to the shipper of peculiar reasons for speedy transit and delivery, the character of the freight, and kindred circumstances.

(a.) Questions not decided by the court below cannot be reviewed here.

November 17, 1885.

Damages. Common Carriers. Railroads. Profits. Evidence. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, 1884.

Reported in the decision.

Peabody & Brannon ; Smith & Russell, for plaintiff in error.

Hatcher & Peabody, for defendants.

Jackson, Chief Justice.

A suit was brought by Flournoy *&*Epping against the Columbus and Western Railway Company for damages in failing to transport and deliver certain cotton to the plaintiffs in Columbus, Georgia, in a reasonable time. Under the evidence, charge and rulings of the court, the plaintiffs *746recovered $222.24; the railroad company made a motion for a new trial, and on its denial brought the case here.

1. Counsel are agreed, and such is the law, that the measure of damages against the carrier ’ when he fails to deliver goods in a reasonable time, in the absence of a special contract, is the difference in the market value of those goods, when actually delivered, from their value if delivered in a reasonable time. There is no special contract sued on or proved in this case ; yet the court below allowed the defendants in error to show, over the objection of the carrier, that they had bargained the cotton off at three-eighths of a cent a pound over the market price, if they could have got it within the reasonable time, though the carrier knew nothing about that bargain, was not informed of it, and not in privity with it at all; and it appears that, though there is conflict in the testimony, to say the least, on the point that the cotton was lower when delivered than when the defendants in error insisted that it ought to have been delivered—the weight of it being that the market price was the same, the jury found just three-eighths of a cent per pound over the market value; thus evidently basing their verdict on the- bargain Flournoy & Epping had made, unknown to the carrier and to which it was no party or privy.

We are clear that this testimony was improperly admitted, and that the carriers were damaged thereby.

2. Whether or not the delay in delivery was unreasonable is a question for the jury, and to be determined by them on all the facts of the case, and it was properly left by the court to the jury. Whether reasonable or unreasonable must depend upon the facts of each case, the time within which it can be ordinarily carried the distance between the points, the preparations made by the carrier, whether ample or not, the effort at dispatch, the information given by the shipper of pe'culiar reasons for a speedy transit and delivery, and all other kindred circumstances bearing upon the particular case, including the character *747of the freight, etc. No better tribunal to pass upon it than a jury can well be found, subject to tbe review of the court to see that the evidence is sufficient to' sustain and support their finding.

Some discussion .arose upon the point whether there could be any recovery at all, if the cotton eventually brought enough to pay the defendants in error the full market price, if it had'been delivered with dispatch, no matter when delivered, free of all expenses; and upon which party rested the *onus*to show what the cotton did sell for and realize clear of expenses ; but the court below passed upon no such point, and we forbear to investigate and adjudicate it, as we are only a reviewing court.

The judgment is reversed because the court erred in admitting and declining to rule out evidence touching the private arrangement of defendants in error to sell the cotton over market price, to which the carrier was no party and of which it was ignorant.

Judgment reversed.

See cited for plaintiff in error, Code, §§3073, 2944; 71 *Ga.,*518.

For defendants, Code, §2073; 32 *Ga.,*400; 58 *Id.,*180; 60 *Id.,*180; 32 Am. R., 342; 7 *Id.,*405; 5 *Id.,*83; 25 *Id.,*452; 50 Am. Dec., 579; Mayne on Dam., sec. 382; 9 Ex., 341; 47 Am. R., 737.