
    The Charlotte, Columbia and Augusta Railroad Company v. Wooten, Hill & Wooten.
    Though goods saved by a common carrier from the perils of a freshet were damaged by passing through the freshet, yet if some not saved are unaccounted for, and it is not shown that the freshet caused their loss, or what their condition was when they disappeared, a recovery for their value may be had against the carrier without deducting anything for conjectural damage which they may have sustained by reason of the freshet before the loss' occurred.
    May 8, 1891.
    Carriers. Railroads. Damages. Negligence. Before Judge Fve. City court of Richmond county. March term, 1890.
    
      Reported in the decision.
    Calhoun, King & Spalding and J. T. Pendleton, by brief, for plaintiff in error.
    Fleming & Alexander, contra.
    
   Bleckley, Chief Justice.

The question is, whether the goods lost by the carrier and never delivered should be paid for as sound, or as damaged goods. If they were damaged, it was by a freshet and without fault of the carrier. The goods not lost or stolen were damaged, but there is no direct evidence that those which disappeared were damaged, or if so, to what extent. So far as appears, they were never seen during or after the freshet, and consequently to say that they were damaged when the carrier lost possession of them, would be a mere conjecture. They might or might not have been stolen during the confusion in business occasioned by the freshet, and when stolen they may or may not have been damaged. It seems that the burden of proof on this subject must necessarily* rest upon the carrier. It had the custody of the property, and that custody has been lost, exactly when does not appear. We can discover no reason for holding that under the evidence the jury made any mistake in finding the value of the goods as proved, irrespective of the mere chance that their value may have been impaired before they were lost. There was no error in denying a new trial. Judgment affirmed.  