This case was heretofore before us. See Reinschmidt, et al., v. L. N. R. R. Co., filed October 7th, 1933, reported150 So. 266. On the mandate going down jury trial was had. Verdict was in favor of defendant. On motion, verdict was set aside and new trial granted.
Motion for new trial contained nine grounds, as follows:
"1. The verdict is contrary to evidence.
"2. The verdict is contrary to the law.
"3. The verdict is contrary to the charge of the court.
"4. The verdict is not supported by the evidence.
"5. The verdict is against the weight of the evidence.
"6. The verdict is without evidence to support it.
*Page 243"7. The preponderance of the evidence was with the plaintiff.
"8. The court erred in refusing to grant the plaintiff's motion to instruct the jury as follows, to-wit: 'You will find for the plaintiff, the Louisville Nashville Railroad Company, and assess its damages at $311.85 with interest thereon at 8% from July 20, 1932, the date of the institution of this suit.'
"9. The court erred in refusing to instruct the jury to find for the plaintiff."
Under the law of the case as enunciated by this Court in its former opinion, supra, and the evidence as disclosed by the record, it appears to me that neither ground of the motion for new trial was well founded. Under the law and evidence submitted, the trial court could not assume as against the preponderance of the evidence adduced that as a matter of law the commodity transported should have applied thereto the rate applicable to logs and not the rate applicable to fuel wood under which latter rate the carrier had classified and transported the commodity. The carrier failed to establish by a preponderance of the evidence that the commodity on which no special rate or classification had been fixed was nearer analogous to logs than to fuel wood.
The argument and authorities presented and cited in the dissenting opinion in this case on its former hearing here by the present writer and concurred in by Mr. Justice ELLIS are applicable to the case as presented now and sustain the contentions of plaintiff in error.
Therefore, on authority of the opinion and judgment heretofore rendered, supra, as well as on the authorities cited and quoted in the dissenting opinion above referred to, I think the order setting aside the verdict and granting a new trial should be reversed.
*Page 244ELLIS, J., concurs.