49 S.E. 208 | N.C. | 1904
Plaintiff, on 12 March, 1902, delivered to the Seaboard Air Line Railway at Charlotte a carload of iron piping to be delivered to the Rhodhiss Manufacturing Company of Granite Falls, N.C. The Seaboard Air Line Railway Company issued therefore its bill of lading — "Released" — contracting to deliver it to the consignee or to its connecting line at Lincolnton, N.C. to be carried to its destination. The jury, in response to an issue submitted, found that the Seaboard Air Line Railway Company delivered the piping to the defendant company *214 at Lincolnton, being the connecting line between said point and Granite Falls, on 15 March, being Saturday. About one-half of the piping was carried to its destination by defendant. The remaining half, while in the defendant's possession awaiting shipment, was destroyed by fire communicated to the car by the defendant's warehouse, which was burned on the morning of 18 March. The delay in forwarding the whole of the piping on the day of its delivery, or Monday following, was caused by the failure of defendant to have sufficient cars for that purpose. The defendant was at that time a narrow-gauge road. The car containing the piping was on the track of the Seaboard Air Line (279) Railway Company near the warehouse of defendant. It was in evidence that the warehouse was burned about 1 o'clock on the morning of 18 March. There was no evidence as to how the fire originated. It was in evidence that when the fire was discovered the warehouse was enveloped in flames. No night watchman was kept at the depot. The defendant kept tubs and barrels filled with water at the depot. The people of Lincolnton had no provision for "fighting fire" — depended on buckets of water.
The jury, having found that the piping was delivered to defendant company, responded affirmatively to the second issue: "Was the destruction of that part of the shipment of pipe by fire caused by the negligence of the defendant, as alleged in the complaint?"
The defendant in apt time requested the court, in writing, to instruct the jury: "That if the jury find as a fact, from the evidence, that part of the pipe was destroyed by fire without any fault on the part of the defendant, and that it provided such appliances and equipments for protecting the property in its control and possession from fire as were ordinarily in common use in the town of Lincolnton, and exercised such care over the same as an ordinarily prudent person would have done under similar circumstances, then the jury should answer the second issue `No.' " The court declined to give the instruction. Defendant excepted.
The court, in response to plaintiff's request, instructed the jury on the second issue: "That it is the duty of a common carrier to carry and deliver with reasonable promptness under all circumstances, and if after defendant had received said shipment or car of pipe from the Seaboard Air Line Railway it could with reasonable promptness have carried the shipment of pipe from Lincolnton to its destination before the fire occurred, it was defendant's duty to do so, and such failure would be negligence; and if this negligence was the cause of the (280) injury, the second issue should be answered `Yes.'
"The law imposes upon common carriers the obligation to have and to furnish sufficient facilities for reasonably prompt transportation *215 of goods tendered for carriage, and would be liable for failure to transport promptly, whether the failure is due to a want of facilities or to a captious refusal to carry; and if the jury shall find that the failure of defendant to carry and deliver the said car or shipment of pipe to its destination before the said fire occurred was due to the want of sufficient cars to carry the usual and ordinary amount of freight over its road, then defendant was negligent, and if this was the cause of the injury, the second issue should be answered `Yes.' "
From a judgment for the plaintiff, the defendant excepted.
After stating the case: In the view which we take of the case it becomes unnecessary to pass upon the defendant's exceptions to his Honor's charge upon the first issue. Assuming that, as found by the jury, the piping had been delivered to the defendant company and that the defendant was in default in not having, as was its duty, a sufficient number of cars to send it within a reasonable time to Granite Falls, we are of the opinion that the defendant was entitled to the instruction asked, and his Honor should not have given the instruction asked by the plaintiff. The defendant, by its failure to ship within a reasonable time, became liable for such damages as naturally and proximately resulted from such breach of contract or duty. Lindley v. R. R.,
In Whitford v. Foy,
The principle has been frequently applied in other courts to cases against carriers negligently delaying the shipment of freight. In Morrisonv. Davis,
"Now, there is nothing in the policy of the law relating to (283) common carriers that calls for any different rule as to consequential *217
damages to be applied to them. They are answerable for the ordinary and proximate consequences of their negligence, and not for those that are remote and extraordinary; and this liability includes all those consequences which may have arisen from the neglect to make provision for those damages which ordinary skill and foresight is bound to anticipate."Daniels v. Ballentine,
The contract with the plaintiff by which the defendant carried the freight "released" relieved it of its common-law liability as insurer, but not against injury resulting from its own negligence. Smith v. R. R.,
There is no suggestion as to the origin of the fire; it may, so far as it appears, have been caused by rats, matches, incendiary, or any other of the unaccountable causes against which human experience (284) teaches it is next to impossible to provide.
In regard to keeping a watchman at the depot, we are not prepared, in the absence of any evidence that it is usual to do so, to say that it was the duty of the defendant to do so. It would seem that if the defendant used the same precaution used by citizens of Lincolnton, it would discharge its duty.
While it is true that this Court has, following the Supreme Court of the United States, and probably a majority of the State Supreme Courts, held that, except in very rare and exceptional cases, negligence is a question of fact and the measure of duty is the conduct of the prudent man, we think that it is still the duty of the judge to explain to the jury the law in the light of the testimony. Russell v. R. R., *218
In this case there was no conflicting evidence. The jury had a full and intelligent description of the conditions, a judge of marked ability and clearness of judgment heard the testimony, and if there had been no evidence of the way in which owners of property in the same town protected their houses from fire the jury would have had nothing save their own experiences and their individual opinions as to what a prudent man would have done in respect to property situated as was the defendant's to protect it from fire other than the damage incident to the passing of engines. What may have been the duty of the court in instructing the jury in such condition of the evidence is not presented in this (285) case. We are of the opinion that the defendant was entitled to have the jury told that the measure of duty was the care taken by prudent citizens of Lincolnton in that respect to their property. Defendant's exception in that respect must be sustained. His Honor should have told the jury that there was no evidence showing that the delay in shipping was the proximate cause of the destruction of the property. The inquiry would thus have been narrowed to the question of negligence in respect to the means provided for "fighting fire." What would have been the liability of the defendant if the freight had been delayed beyond the number of days fixed by the statute it is unnecessary to suggest. We have not considered the exceptions directed to the first issue. There must be a
New trial.
Cited: Bowers v. R. R.,