59 S.E. 663 | N.C. | 1907
Judgment for plaintiff. Defendant noted exceptions and appealed.
The following case is disclosed by the record: On 7 December, 1906, Nissen Co. delivered to defendant company at Winston-Salem, N.C. one wagon for transportation and delivery to plaintiff at Grover, N.C. The wagon was delivered to plaintiff 12 January, 1907. The distance between the two stations is "more than 100 and less than 200 miles." There was no testimony tending to (179) *130
show the ordinary time required to transport freight from Winston-Salem to Grover. Defendant introduced no evidence. Motion for judgment of nonsuit denied. Defendant excepted. This ruling of the court presents the question whether, the distance between the two points and the time consumed in the transportation being shown, plaintiff is entitled to have his case submitted to the jury to find whether the freight has been transported within the ordinary time required, etc. We undertook, so far as necessary upon the record, to construe the statute inStone v. R. R.,
In Oppenheimer v. Wolf, 3 Sandf. Ch., 571, it was material to fix the date as nearly as possible of the death of one Joseph Wolf, lost in a voyage across the Atlantic. This fact was dependent upon the time ordinarily required to make the trip in vessels of the character of that in which he sailed. The Vice Chancellor said: "These are facts forming a part of the experience and common knowledge of the day, and as such are legitimate grounds for the judgment of the Court." In Pearce v. Langfit, 101 Pa. St., 507, it is said: "We apprehend that the ordinary speed of railway trains is a matter of judicial cognizance, and hence a very simple computation will demonstrate with approximate certainty the time within which mails may be transported between such cities as New York and Pittsburg." In Williams v. Brown, 53 A.D. (N. Y.), 486, Jenks, J., says that "the time of railroad travel and transportation of the mails between two cities is less than two days" will be taken notice of by the Court. In Bradford v. Steamship Co.,
To have nonsuited plaintiff upon the record would have been trifling with the administration of the law.
While we are clearly of the opinion that in this case the jury were fully justified in finding the issue for the plaintiff, we do not commend the practice, becoming too common, of submitting causes to juries upon slight evidence, especially when the party having the burden of the issue may so easily show the very truth of the matter. When the distance is greater and the time shorter, we would not be disposed to relax the safe rule that the plaintiff must make out his case by the introduction of evidence. If, as is contended, the matter is so well known that jurors are asked to act upon their common knowledge, it certainly cannot be an unreasonable burden upon the plaintiff to require him to introduce some evidence. The purpose of a trial by jury is to establish the truth, to the end that a righteous judgment be rendered.
If the defendant be so advised, it may, of course, show that, notwithstanding the time consumed in the transportation is in excess of the ordinary time, extraordinary conditions, unforeseen and (183) unforeseeable causes, intervened and prevented the discharge of the duty within the ordinary time. If such conditions as the law deems adequate are shown, the prima facie case is repelled and the question of reasonable time is measured by the unusual and unexpected conditions. Whitehead v. R. R.,
In Walker v. R. R.,
His Honor told the jury that if the goods were not delivered within two days from the day of receipt and forty-eight hours at intermediate points, there was prima facie an unreasonable delay. This view entirely eliminates the element of "ordinary time," making a "hard and fast" rule. Endeavoring to avoid this construction, which we thought inconsistent with the general provisions and purpose of the statute, we held in Stone's case, supra, that the last sentence in order of arrangement should be referred to the former sentence making "ordinary time" the prima facie standard, thus making the act read: "A failure to transport within ordinary time is prima facie
unreasonable." Thus construed, the jury find, first, whether the transportation was within the "ordinary time." This being found, the question arises, What time should be allowed defendant as "ordinary time" for transporting? For all in excess of this time it is liable for the statutory penalty, less two days at the "initial point" and forty-eight hours at one intermediate point for each 100 miles of distance, etc., which shall not be charged against such carrier as unreasonable. Thus construed, the two days at the initial point and forty-eight hours at each intermediate point are not the standards by which "reasonable time" is measured, but are not to be charged as "unreasonable," or, as we said inStone's case, to this extent the standard of the common-law duty is lowered. We have defined the term *134
"intermediate point" in Davis v. R. R.,
New trial.
Cited: Hamrick v. R. R., post, 186; Wall v. R. R.,