Foard v. Atlantic & North Carolina Rail Road

53 N.C. 235 | N.C. | 1860

MANLY, J., being a stockholder in the railroad company, took no part in the decision of this case. The plaintiff, who was the owner of a steam flouring mill in (236) the county of Rowan, declared against the defendants as common carriers upon the custom, and for negligence as bailees, in failing to forward a piece of machinery, to wit, a large steam pipe, whereby, and in consequence of which neglect, his mill was delayed in its operations, and he thereby deprived of its profits.

The following bill of lading was exhibited, in evidence:

"Shipped, in good order and well conditioned, by Dibble Bunce, on board this schooner called the Howard, whereof ______ is master for this voyage, now lying in the port of New York, bound for New Bern, N.C. to say:

____________ "There pipes in one bundle, two single pipes, marked O. G. Foard,| and numbered as in the margin; to be delivered in the Salisbury. | like good order and condition, at the port of New Bern, | N.C. (the dangers of the seas, only excepted), unto | Atlantic N.C. Railroad agent, or to his assigns, he or | they paying freight for the said articles as customary, | with primage and average accustomed. In witness whereof, | the master or purser of the said vessel hath affirmed | to three bills of lading, all of this tenor and date; one of | which being accomplished, the others to stand void. | | Dated in New York 15 September, 1858. Per Master. ____________| E. HOLMES."

It was proved by one Taylor that the schooner Howard arrived at New Bern on 19 September, 1858, and he, in pursuance of general instructions given by the agent of the railroad, put the goods on board a dray and sent them to railroad depot, and that the, Taylor, was the known agent of the masters and owners of the schooner Howard and resided in the town of New Bern. It was further proved that all the articles forwarded to the plaintiff, except one of the single pipes, which was a large one, seven feet long, on which the direction had been obliterated, so that no part of it was at first legible, but that by rubbing it with a rag, saturated with oil, the word "Salisbury" could be read. The agent of the railroad swore that the pipe in question was not forwarded, because he could not tell to whom it belonged. (237) Mr. Fisher, the agent of the plaintiff, swore that on the 22d of September, aforesaid, he received notice from plaintiff that the pipe had not come to hand, and directions to inquire for it; that he went on the same day to the depot and made known his instructions to the agent of the depot, who informed him that he knew nothing about it. He was directed to call in the morning, when another agent, the regular one, would be at home; that he did call and looked at the pipe in question and saw others, but neither he nor the agent could ascertain to whom it belonged, and that no further search was made on either of these occasions. Mr. Taylor also swore that if he had been applied to at any time after the delivery of the articles at the depot, he could have identified the one spoken of, as the property of Mr. Foard. Mr. Aldrich, machinist, swore that on 29 October ensuing, he went to the depot of the defendant at New Bern in search of the missing pipe and found it lying in the depot and knew it immediately. He said he knew the article from the number and description mentioned in the bill of lading produced by the agent of the depot and from his knowledge of the article wanted; that the pipe in question was a very important part of the machinery, without which the mill could not go at all, and for the want of which it was stopped for six weeks. He further swore that he did not believe that such an article could be supplied nearer than the city of New York, and that he took possession of it and carried it to the mill immediately upon his finding it. The counsel for the defendant asked the court to charge the jury, that if the missing pipe could have been supplied, it was the duty of the plaintiff to have got another pipe, and that he was not entitled to recover for the stoppage of his business for any longer time than he could have sent and got another pipe. The Court declined to give the instruction, but charged the jury that the rule of damages was the net profits of the mill which had been lost by the delay in getting the pipe. Defendant excepted. (238)

On the trial the question of defendants' liability in point of law was reversed by his Honor, with leave to set aside the verdict, in case plaintiff should get one, and enter a nonsuit. Verdict for plaintiff. Afterwards, on consideration of the question of law, his Honor, being in favor of the defendant, ordered the verdict to be set aside and a nonsuit entered. Plaintiff appealed to this Court. The defendant also appealed, on his exception as to the measure of damages. Upon the trial it seems to have been conceded that the defendants were not liable as common carriers, for their neglect to send on, in proper time, the pipe in question. It was decided in Boner v.Steamboat Company, 46 N.C. 211, that company whose ordinary business was to transport goods by water for freight was not bound, as to the time of delivery, as common carriers, but as mere bailees for hire; and we think the same rule must be applied to a company which carries goods for freight on a railroad. The rule of negligence in such cases makes the bailee bound for ordinary care, and, of course, makes him responsible for ordinary neglect. Applying this rule as a test to the facts of this case, we differ from his Honor in the court below, as to the result. It is our decided opinion that the agent of the company was guilty of at least ordinary, if not gross neglect in not forwarding the pipe to the plaintiff. It was, under the instructions from the agent, put on a dray, together with another single pipe and a bundle of three pipes, to be carried to the company's depot. When it arrived there it was, or ought to have been, put with the other articles with which it had come, as shown by the bill of lading. If it had been so placed, the agent, who had been furnished with the bill of lading, would not have left it behind when he sent on the other articles. A man of ordinary prudence, in the management of his own affairs, would not have (239) permitted, while he had the bill of lading in his own hands, one pipe to be separated from the others, and would not, therefore, have neglected to send them on as he had received them, all together. Besides, when he learned that one of the articles had not been forwarded, he would have applied to the ship's agent to assist him in finding it out, as soon as he ascertained that there was some difficulty in identifying it. Mr. Fisher, the plaintiff's agent, had no other means of ascertaining which it was then any other person, but Mr. Taylor, the ship's agent, had; and he testified that if he had been applied to he could easily have pointed it out, so that the greater part of the delay might have been avoided.

As a verdict was taken for the plaintiff, subject to the opinion of the court as to the legal liability of the defendant, we might, upon reversing his Honor's opinion as to that question, direct a judgment to be entered upon the verdict for the plaintiff but for the objection of the defendant to his Honor's ruling upon the question of damages. Upon that question, we also differ from his Honor. When he made the decision, we presume that Boyle v. Reeder, 23 N.C. 607, was not called to his attention. That was a case where the plaintiff declared for the breach of a covenant, in which the defendant had bound himself to furnish machinery for a steam saw mill by a stipulated time. He claimed, as damages, the estimated value of the profits, which he alleged that he might have made, if the covenant had been complied with. The Court said, through Ruffin, C. J., who delivered the opinion, that "very certainly damages are not to be measured by any such vague and indeterminate notion of anticipated and fancied profits of a business or adventure, which, like this, depends so much on skill, experience, good management, and good luck, for success. That would make the defendant an insurer against losses from any cause in a business of hazard, and even against the plaintiff's want of management. The gains of the business the plaintiff might have done, or probably would have done, cannot be correctly estimated; and, therefore, evidence offered with a view of estimating them as the standard of damages was (240) properly excluded, as being irrelevant and tending to mislead the jury." The proper measure of damages, the Court said, was to give the plaintiff "a fair rent for the time, or compensation for the capital invested and lying idle." This rule, we think, will apply to the present case, and being one which we find to have been adopted by this Court after full consideration, we feel no inclination to disturb it. In our opinion, then, the plaintiff will be entitled to recover from the defendant, on another trial, a compensation for his capital invested, while it was lying idle for the want of the pipe not forwarded in proper time, that is, the legal interest on such capital, also for any workmen or hands necessarily unemployed for the same cause, and also for the expenses of sending the machinist after the missing pipe; besides any other damages which were the direct and necessary result of the defendant's negligence.

The effect of the error committed by his Honor in respect to the question of damages is that the judgment must be reversed, and a

PER CURIAM. Venire de novo.

Cited: Mace v. Ramsay, 74 N.C. 15; Whitford v. Foy, 65 N.C. 271;Roberts v. Cole, 82 N.C. 294; Willis v. Branch, 94 N.C. 149; Spencer v.Hamilton, 113 N.C. 52; Reiger v. Worth, 127 N.C. 236; Sharpe v. R. R., 130 N.C. 615; Extinguisher Co. v. R. R., 137 N.C. 282;Lewark v. R. R., ib., 385; Machine Co. v. Tobacco Co., 141 N.C. 294;Stone v. R. R., 144 N.C. 224; Furniture Co. v. Express Co., 148 N.C. 90;Lumber Co. v. R. R., 151 N.C. 25; Brown v. R. R., 154 N.C. 305;Tomlinson v. Morgan, 166 N.C. 561.

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