Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-06-16
An OLD WAR CASE;
verdict Against q railroad Company
for the value Of whisky Taken by
the Confederates-Jadge Baxser's
tn no I'm

the Confederates-Jadge Baxser's
Charge 10 the Jury.
The case of Horton * Estes vs.. the Nash
vile and Chattanooga Railroad Company,
whic. has been pending in the Circuit
Court, resulted yesterday in verdict for
the plaintiff for S4,1l9. As the case is one
involving some very interesting points Of
law, the following charge delivered to the
Jury by Judge Baxter, will doubtless be
read with interest:
Harlan & Estes VS.. n. and Q. r. X. Co.
The plaintiffs sue the defendants as
common carriers for the value OF hfty-two
barrels of whisky, which they allege they
delivered to defendant at Nashville on
Feb 5, 1862. to be carried and delivered to
them at Memphis.
A common carrier is one who undertakes
generally and for all people indiffer-
emily to carry goods and deliver
them at place appointed, and
with or without a special agreement as
TO price, and he is in the nature of an in
slrer and is answerable for all accidents
and thefts which do not fall within the
accepted cases of the act of God, meaning
inevitable accident without the interven-
ton of man and public enemies. In
stances of the act of God are such as
storms, tempests, floods, lightning, etc. A
public enemy is an organized force waging
or threatening war against the government.
And i'm order TO excuse a common
rrier on the ground of loss caused
by the public enemy, il must be an enemy
of the government of which the carrier is a
citizen or subject.
The armies and soldiers of the Confed-
crate Government were not public enemies
of the people and government OF Tennes-
see; and if the whisky was destroyed by the
officers and soldiers of the Confederate
army at Nashville, they not being public
enemies of the citizens and government of
Tennessee, will not exempt the defendant
from liability if the defendant at that time
was in possession of the whisky as a com
mon carrier.
But the Confederate army was recognized
as belligerent power, and at that time
was engaged in fragrant war with the Fed
eral Government, and exercised and had
right to exercise all the powers that could
rightfully be exercised by any other bellig-
erent powers, and amongst them was
the right to seize and approprl-
ate to its service the rail-
roads lying within the field Of
its operations. And if the proof shows that
Gen. Johnston as Commander-in-Chief Of
the Confederate forces in Tennessee seized
the defendants railroad and took control Of
it and devoted it TO the service of the Con
federate army from that time forth during
the continuance of the order ceased to be
common carrier, and ceased to be re-
spOnsible as such to all persons deal
| ing with it with knowledge of the fact, and
this is so whether the military authorities
run the road through the agency OF the
defendant or its agents or employees, Or
whether it displaced from the management
of the road and suspended tn, m by its own
military agents. In either case the defend
ant ceased to control the road and its bus
iness, and could not be held responsible for
the acts of the military authorities.
But if you believe from the proof that
such seizure was made, but that 1t was
kept a secret from the public, and that the
defendant SO continued to act and hold itself
out to the public as common carrier
the law would hold il liable as such, to
all persons dealing with it in ignoranet,
| that it was not common carrier. But If
you believed from the proof that at the
| time the whisky was delivered to the de-
| PENDANT, the plaintiffs or their Agent
| knew that the road had been taken posses
sion of or taken under its control by the
military authority, then the defendant
would not be responsible as common car
rier, and this would be so regardless of the
source through which the plaintiffs or their
agent obtained their information, unless
there had been an express contract between
the parties that the defendant should be
liable as such.
If YOU find that the defendant was not
a common carrier at the time the whisky
was delivered to il, and thai the plaintiffs
or their agent knew it, then the liability
of defendant would depend upon defunct
principle.
At the time the whisky was destroyed,
| the Confederate military authorities had
and exercised control and dominion over
the territory where the whisky was de-
posted, and if the destruction of the
whisky was effected on the exercise Of
Military control and dominion whether
exercised as a military measure to prevent
the whisky from falling into the hands of
the pursuing army, or whether upon the
necessity for the destruction to save the
citizens from the impending danger of a
pursuing solGiery when excited and infuri-
| ated by the use of the whisky, are ques-
tions Of fact for you to determine from the
proof; and whether it was destroyed for the
| one purpose or the other, if done under the
necessity which justifies such appropriation
of private property, it would be sufficient
| ground of defense if the defendant was free
| from fault in the matter.
The necessity which will justify the de-
struction of private property must be i'm
minent and impending; the apprehension
| of danger must be well-fOunded, or appar
| emily so. The evidences of the peril must
| be such as to satisfy a sensible and firm
man that the danger was probable; and if
YOU believe from the proof there were rea-
sOnable grounds to believe at the time that
there was an impending danger that the
whisky, if not destroyed, would fall into
| the hands ofthe Confederate or Federal SOL
diers, or other parties, and that there existed
at the time such state Of Generalization
among said soldiers or other parties as
would, in all probability, cause them to be
come drunk, and, under the excitement
| of drunkenness thus produced, destroy or
| injure the city or its inhabitants, in such
case the defendant would not be response
BILE.
1t was the duty of the defendant to for
ward the whisky as soon as it could after it
received it, but a delay to do so prior to the
appearance or probability of danger would
not render it liable for the subsequent de-
struction and loss of it by the act of the
military force. But as soon as the neceSsi-
ty for its destruction began to manifest it.
| self, or as soon as it began to be probable
that it would be destroyed, it became the
duty of the defendant to get it out of the
way, if it could, either by shipping it or by
storing it in some more secure place If that
could be done, and, to accomplish this end,
it was bound to use such diligence and
make such efforts as man of ordinary pru-
| dence and diligence would be expected to
Us, in the preservation of his own property
of like description and value and under
| like circumstances.
If YOU find for defendant, that is all yOu
need say. If for the plaintiff, the value Of
the whisky at Memphis at the time it
should have been delivered, less such costs
and charges as may appear to be due de-
PENDANT for freight and other charges.