ON MOTION EOR REHEARING.
Jenkins, P. J.1. The 1st division of the original syllabus has been slightly amended so as to avoid any possible construction that this court intended to rule that the plaintiff, as owner of a special property and interest in the subject-matter, if he should recover under the rules stated “both for himself and the general owner,” could recover the full market value at the time and place of injury, without any deduction for whatever amount would be chargeable against the consignor-vendor’s interest. Such interest of the holder of the retention-of-title notes would'be chargeable with such amount as the holder realized upon the debt in the public sale of the property under the notes; and from any amount which the jury might find for the jflaintiff, as the market value of the interests both of himself and of the vendor, there should be deducted the amount which may be shown to have been received by the vendor at such public sale.
2. In its motion for rehearing the defendant carrier contends, that, in the ruling in the second division of the syllabus, to the effect that the trial court erred in granting a nonsuit as to the *215damage claimed against the carrier for injuring the machinery while in transit, this court overlooked specified portions of the evidence demanding a verdict for the defendant. The evidence referred to is that of the plaintiff’s witness, Greeley Gresham, as follows: When “we started to roll it (referring to the boiler in question) the axle broke, . . and there was part of the axle looked like a fresh break. . . It would have taken a pretty heavy blow to break the axle the way it was broken. I don’t think it could have been broken with a hammer.” The defendant contends that the presumption against a common carrier on account of the running and operation of its trains “does not exist where the plaintiff’s evidence shows conclusively that the goods were receipted for in good order, and that it was a physical impossibility for the damage to have resulted through any negligence of the carrier.” It is further contended “that the plaintiff’s evidence showed that the break in the axle was an old break, and that portion which was a fresh break might have easily been caused by knocking the blocks out from the boiler with a hammer and letting the axle down suddenly;” or that the “falling apart of the axle might have been caused by the proper movement of the train, for which the defendant would not have been liable;” and that it was necessary for the plaintiff to negative both of these theories. The defendant is apparently in error as to the giving of a receipt for the goods “in good order” by the plaintiff consignee or his agent. The only reference to a receipt in the record is to documentary evidence, as follows: “One freight bill for $54.00, and payment receipted for by J. H. Burch,, Agent of Southern Railway Company, on December 16, 1922. Consignee A. TI. Allen, Dames Ferry, Ga. Shipped from Inman Yards, Ga., by Woodruff Machinery Mfg. Co., Atlanta, Ga. Weight 20,000.” The following notation is written across the face of the receipt: “Rear axle broken. J. H. Burch, Agt.”. It thus appears from the receipt, signed not by the consignee or his agent, but by the defendant’s agent, that at the time of the payment of freight and alleged delivery to the consignee the axle in question was “broken.” While the evidence of the witness Gresham is not clear as to the nature and causes of the break, it does not appear that his statement, “when we started to roll it off (the car) the axle broke,” was intended as an admission, or necessarily meant, that the moving of the car broke the axle, as appears from his evi*216donee following, that “part of the axle looked like it was an old break and part appeared to be a fresh break,” and that “a part of it was rusty between the break.” While it was for the jury to pass upon such questions, they were authorized to find that the meaning of the witness was merely that, because, of'the existing breaks referred to, the axle gave way when the moving was started. Nor does the defendant seem to contend, under its language above quoted, that the evidence demanded a finding that the break was caused by the attempted moving. Since there was no receipt by the consignee for the goods as in good order, and the evidence did not demand any finding that the plaintiff knew or should have known that the attempted moving of the machinery would cause the axle to give way, a verdict was not demanded for the defendant, Imt it was for the jury to pass upon all the evidence in connection with the statutory presumption against the carrier, and say what was the actual and proximate cause of the injury to the axle, alleged to have occurred while in transit, and whether the proven facts showed that the presumption of negligence against the carrier had been successfully rebutted. The onus was not upon the plaintiff to negative the theories suggested by the defendant as to the cause of the break, since the evidence did not demand a finding that either theory had been prima facie established.
. 3. It is further contended that, as to the injury to the machinery while on the defendant’s side-track, the evidence conclusively showed that the- defendant was no more than a naked depositary or gratuitous bailee, liable only for gross neglect; that there was therefore no presumption against the defendant as a warehouseman; that “the court, in holding that defendant would be liable by reason of the fact that the freight agent agreed to look out for the freight so that it would not be. damaged by being struck by trains on the siding, overlooked the cases of Ga. R. &c. Co. v. Thompson, 86 Ga. 327 (13 S. E. 561), and So. Ry. Co. v. Rosenheim, 1 Ga. App. 766 (58 S. E. 81); and that such a promise was a mere personal undertaking by the agent. In the latter of these cases it was held that “One who, having been a passenger, arrives with his baggage at destination, surrenders his checks, opens up the trunks in the baggage-room, and afterwards leaves the trunks in the baggage-room by permission of the baggage clerk, upon a statement that he will be going off next day and will then recheck them, can not hold the *217railway company responsible, as a carrier of baggage, for the destruction of the trunks by fire during the night. . . The transaction, if not merely a personal one between the owner of the trunks and the baggage clerk, charges the railway company with no higher responsibility than that of a depository” -without compensation. “In neither event is the railway company liable for the loss, no gross negligence appearing.” In that case it appeared that the relationship of carrier and passenger had completely terminated, and that the plaintiff “surrendered the checks [for his baggage], took charge of the trunks, opened them up in the depot, and sold a customer a bill of goods” therefrom. Under such circumstances, where the agent merely permitted the plaintiff, for his convenience in rechecking the trunks the following morning, to leave them during the night in the baggage-room, after they had been actually delivered, and where the plaintiff was neither charged nor made liable for storage, manifestly the defendant did not become a warehouseman. In the former case (86 Ga. 327 (2), 328) the ruling was merely that, “on the trial of an action against a railroad company for the loss of a passenger’s trunk, it was not error to charge that if the company failed to deliver it and undertook to deposit it in its warehouse, its liability would he that of a warehouseman, and it would be bound to use ordinary diligence in taking care of it, and if it failed, the plaintiff would be entitled to recover;” and the court in its opinion said, “Whether the company delivered the trunk to the plaintiff, or to its own agent to he deposited in its warehouse, was a question of fact to be determined by the jury.”
While the question is not without difficulty, under the particular facts of this case as set forth in the original syllabus and the statement of facts, the record not disclosing that the plaintiff consignee had, with full knowledge of the break and the result to the axle of attempting to move the machinery, given a receipt to the carrier for the property as in good order, and not demanding a finding that the plaintiff had taken it into his possession with the duty of removal from the car and side-track, and that delivery had thus been properly and fully accomplished by the carrier, the court adheres to its original judgment and syllabus, that, as to the damage claimed from the knocking of the machinery from the car on the defendant’s side-track, the grant of a nonsuit was erroneous.
Motion for rehearing denied.
Stephens and Bell, JJ., concur.