61 N.C. 421 | N.C. | 1868
The defendant transported to Greensboro, for the plaintiff, a hogshead of molasses. The car in which it was conveyed passed beyond the old warehouse to the new platform in order to come in on the sidetrack, and owing to the location of other cars, was stopped at the west side of the new platform and was not brought back to the old warehouse. The plaintiff was informed by the defendant's agent that the molasses was at the depot and was requested to send for it. He therefore sent his driver with a wagon for it. Upon application by the driver for the molasses, the agent told him to drive around, that it was at the west end of the company to deliver it. The hogshead was then rolled out of the car upon the new platform and thence the hands of the defendant and the plaintiff's driver attempted to remove it into the wagon (which had been backed up to the platform) by means of a plank which passed, at an angle of 45 degrees, from the wagon to the platform. In the attempt the hogshead rolled, fell upon the ground and burst. It was agreed that *328 if his Honor should be of opinion that the plaintiff was entitled to recover, a judgment should be entered for the value of the (422) molasses; otherwise a judgment of nonsuit. The court being of opinion with defendant, gave judgment accordingly and the plaintiff appealed. Defendant ought to have delivered the hogshead at the old warehouse, the usual place. Hilliard v. R. R., 6 Jon., 343; Neal v. R. R., 8 Jon., 482; 1 Pars. Con., 663, n. v.; Thomas v. Boston Prov. R. R. Co., 10 Met., 472.
Delivery was not complete when accident occurred, and under circumstances defendant must be held to have warranted the sufficiency of the method suggested by himself, as the plaintiff had nothing to do with it. DeMott v. Laraway, 14 Wend., 225; Graff v. Bloomer, 9 Barr., 114; 1 Pars. Con., 658 n. o. If plaintiff had requested the delivery at an unusual place, defendant would not have been liable. Lewis v. West. R. R. Co., 11 Met., 509. See Richards v. London Railway, 7 C.B., 839, as to responsibility of a company for acts of porters in its employ. When the hogshead was safely landed upon the platform, that was a delivery; and the company was liable no longer as a common carrier. That the plaintiff waived a deposit in the warehouse can make no difference. That hands employed by the company volunteered to assist the plaintiff, who was short of hands, to transfer the hogshead from the platform into the wagon cannot involve the company in any responsibility; at least, can involve it no further than, as an unpaid bailee, for gross neglect.Hilliard v. R. R., 6 Jo., 343; Neal v. R. R., 8 Jo., 482; Boner v.Steamboat Co., 1 Jo., 211; Stanton v. Bell, 2 Hawks, 145.
Here the facts do not show negligence, and the burden of proof (423) is upon the plaintiff. 2 Star. Ev., 970. The car which brought the hogshead of molasses passed beyond the oldwarehouse to come in on the sidetrack, and was, owing to the location of other cars, stopped at the western end of the new platform, and was not brought back to the old warehouse. "Plaintiff's driver applied for the molasses, and the agent told him to drive around, that it was at the west end of the new platform." In the attempt to remove the molasses from the car to the wagon, using the west end of the new platform as a resting place, the molasses was lost. *329
It is clear, from the statement of the case, that the defendant's agent intended to land the molasses on the platform at the old warehouse, and failed to do so because some other cars were on the side track; and it is to be inferred that the driver of the plaintiff applied for it at the old warehouse, and was told "to drive around." So we must take it that the platform at the old warehouse was the usual place at which heavy articles were landed, and the attempt to remove the molasses from the car to the wagon at the west end of the new platform (a place, by the by, which was very ill-suited for the purpose), at an angel of 45 degrees, was resorted to by the agent of the defendant in order to get around the difficulty caused by other cars being in the way.
We hold, upon this state of facts, that the defendant is liable for the loss, on the ground that the molasses was not delivered according to its contract as a common carrier.
If the molasses had been landed on the platform at the old warehouse, the usual place of landing such articles, we incline to the opinion that the transit of the article would have been at an end, so as to relieve the defendant from further liability as a common carrier.
Whether railroad companies are compellable to furnish hands (424) to remove heavy articles from the platform to wagons sent to haul them away, is a question into which we do not enter, except to remark that such a practice would greatly promote convenience of persons who employ the road and add much to its business.
We also refrain from expressing an opinion how far, if there be such a practice, the railroad companies would be liable for loss as common carriers, or merely as bailees for hire (we put out of the question the notion of a gratuitous bailment) because it is not set out in the case, whether there is such a practice at the Greensboro station or not, and it may be that the attempt in this case to load the wagon is attributable to a desire to get the molasses into the wagon at an unusual and very unfit place, because of the difficulty of getting the car up to the right place. So this instance does not furnish any ground sufficient to infer a practice.
As is said in Hilliard v. R. R., 6 Jon., 343: "We prefer feeling our way until the necessity of the decision in some case may require a direct determination."
PER CURIAM. Judgment reversed, and judgment here for plaintiff. *330
(425)
