16 S.E. 323 | N.C. | 1892
AVERY, J., dissenting. "The plaintiff contends that the Atlantic and North Carolina R. R. received from him a car load of lumber for transportation; that the lumber was destroyed by fire and was not delivered by the said railroad company through their negligence; that the railroad company is a common carrier, and is liable as insurer to the plaintiff in the sum of damage to $159.99. The defendant denied all of the allegations of the plaintiff."
The foregoing constitutes the pleadings in the justice's court, from which the case was brought by appeal into the Superior Court (595) and there tried.
It was agreed that the evidence introduced by the plaintiff should be accepted as the facts in the case. Upon these facts his Honor should base his conclusions of law, and thereupon the court rendered the following judgment:
"This cause, coming on to be heard, and having been heard, the plaintiff having offered all the testimony, and the defendant declining to introduce any evidence, the court adjudges that the defendant company were not common carriers of the lumber, to recover damages for the burning of which this action is brought. *369
The court, by consent, finds that said lumber had been left with the defendant awaiting orders to forward the same, and, as a conclusion of law, that the defendant was not an insurer of said lumber, but was a simple warehouseman.
The fire by which the same was destroyed being accidental, the court holds that the defendant is not liable; that it exercised that degree of care which a reasonably prudent man would take of his own property under similar circumstances, and was not negligent; wherefore, the court considers and adjudges that it go hence without day and recover its costs."
From which judgment the plaintiff appeals, and assigns as error that the facts in evidence do not warrant in law the conclusions of his Honor. We may consider this as a demurrer to the evidence, the defendant admitting the facts to be as testified to by plaintiff's witnesses, and contending that upon the facts found the plaintiff is not entitled to recover.
We concur entirely with his Honor below in his conclusion that defendant's liability was not that of a common carrier. Taking the facts most strongly in favor of the plaintiff, he asked of the defendant's freight agent a car to load with lumber to go to Philadelphia. (596) The agent pointed out to the plaintiff a car which he might use for the desired purpose. The plaintiff loaded the car with lumber, and finished on the night of 24 December, but did not notify defendant's agent that the car was ready for shipment nor of the name of the consignee.
Treating the loading of the car upon defendant's track as a delivery to defendant and an acceptance, it was not yet ready for transportation, for the defendant had not been notified of its readiness nor to whom it was to be shipped. It was necessary for the defendant to await further orders before shipment. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they are so in his custody, is only liable as warehouseman. O'Neal v. R. R.,
As to defendant's liability as warehouseman, if the complaint may be construed to set up a claim on this account, by the testimony in the case, which is admitted to be true, the defendant was a gratuitous bailee, *370
and the facts do not establish such negligence as would entitle the plaintiff to recover. Schouler, B. C., 390; McCombs v. R. R.,
AFFIRMED.
Cited: Malloy v. Fayetteville,
(597)