This case is now before us on a rehearing. It was affirmed by a per curiam judgment on the authority of Pipkin v. Railroad,
“The principles involved in this decision are of great importance to each and every one of these shippers as well as to the carriers doing business in this State. It would seem from this judgment as it now stands that this petitioner has been remiss in some particular. If so, a, written opinion would enable it to repair its practice, if it is remiss, and ■provide against a repetition of the circumstances that brought about this and the various-other cases brought against it in this respect. Without suehNia written opinion, this petitioner
In the discussion of the principles involved in this case we will follow the order in which they appear in the petition. It says: “Your petitioner respectfully points out the following as questions that arise in the determination of this case, which has not heretofore been passed upon by this Court:
2. Principles of law not heretofore decided in North Carolina.
(A.) Whether this plaintiff, by sounding his action in tort, can thereby annul and render of no effect the terms of the contract he has made with the carrier.”
We do not think that this question is before us; certainly not in the form in which it is stated. It assumes that there was a valid contract existing between the plaintiff and defendant whereby the defendant was relieved from all damages resulting from delay, no matter from what cause such delay might arise. In our opinion there was no such contract. It is true that tile words “subject to delay”' were written on the bill of lading, but we do not think that they modified its essential character. If they meant that the melons were accepted for shipment subject to delays arising from causes beyond the control of the carrier, they merely expressed one phase of the carrier’s liability under an ordinary “Owner’s Risk” bill of lading. If such endorsement was intended to relieve the carrier from liability for delay arising from its own negligence, it would not be enforeible. Rocky Mt. Mills v. Railroad,
In Gardner v. Railroad,
Hale on Bail, and Car., sec. 90, thus lays down the rule: “By express agreement, common carriers may limit their liability to that of ordinary bailees for hire; but they cannot stipulate against liability for negligence, either of themselves or of their agents or servants.”
Again, the same author says in section 82: “Even where the loss is caused by a peril against which carriers are not insurers, they are nevertheless liable, if they fail to use reasonable care and diligence to avoid all perils, including the exсepted perils.”
The first issue was: “Did the defendant exercise due diligence, under all the circumstances, to avoid delay in carrying and delivering plaintiff’s melons?” To this the jury answered “No.” The burden of this issue was upon the defendant. Mitchell v. Railroad,
The rule is thus stated in 5 A. & E. Ency. Law, 2d Ed., 254: “It seems, however, that on proof of a delay in delivery a prima
In Hinkle v. Railroad,
The reason is thus stated in Riley v. Horne, 5 Bing., 217: “When goods are delivered to a carrier they are usually no longer undеr the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier’s servants, and they, knowing that they could not be contradicted, would excuse their mаsters and themselves. To give due security to property the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward — namely, that of taking all reasonable care of it — the responsibility of an insurer. From his liability as an insurer the carrier is only to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rаsh as to attempt to prove that they had happened when they had not, namely, the act of God and the King’s enemies.”
In Roberts v. Turner,
We have placed upon this bill of lading the only construction that would be legally enforcible; but if there were two legitimatе constructions we would be compelled to adopt that most favorable to the shipper, as all such limitations of liability, being in derogation of common law, are strictly construed, and are never enforced unless shown to be reasonable. This principle is too well settled by our own decisions to require the citation of other authorities. Wood v. Railway,
That such a rule of construction is not peculiar to this State is shown by the recent case of Texas, etc., R. Co. v. Reiss,
In the case at bar it does not appear that the plaintiff received any consideration whatever for the further limitation of liability (if there were any) caused by the endorsement, of the words “subject to delay” on the bill of lading, nor does
The petition says: “The second point not heretofore decided by this Court, but apparently approved by this decision, is: (B) Is an extract from a newspaper published in the city of New York, without explanation of its authority or from whom the statements contained are obtained, legitimate evidence to prove negligence of this defendant or its connections ?”
As a general proposition of law, disconnected from the facts of this case, we would be inclined to a negative answer without much discussion; but as we think that the extracts in question come clearly within the agreement of counsel, thеre was no error in their admission. The agreement was as follows : “It is agreed that either party may introduce in evi
The defendant’s petition further says: “A further point presented and not determined by this petition is: (O) When a shipper makes a special contract with a carrier, and thereby agrees that his goods shall be shipped ‘subject to delay,’ does he thereby accept thе conditions existing on the carrier’s road at the time he makes the contract, or may he, even though he so contracts, complain of conditions then existing and recover for acts of negligence that were committed prior to the making of such special contract, even though the shipper knew of such negligence and conditions at the time?” The point involved in the defendant’s question assumes too much and is too broadly stated to admit of a definite answer in this case. All that we can say is that it is the settled ruling of this Court, in accordance with the practically unanimous concensus of authority, that the highest principles of public policy will not permit a common carrier to exempt itself by contract from liability for damage directly resulting from its own negligence.
Again the petition asks: “Sectiоn 1904- of The Code makes it obligatory upon all railroad companies to accept freight offered, under penalty of $50. per article for refusal. This being so, is this petitioner entitled to the five days allowed by section 1961 of The Code before becoming responsible for failure to ship the same ?” In our opinion these sections of The Code apply simply to the penalties therein imposеd, and are not intended to limit the common law liability of common
The petition again suggests that “This Court apparently overlooked the fact that the Court below charged the jury that it was for them to determine whether the goods in question were shipped on a special contract, and refused to charge that the goods were shipped on such a special contract.” We presume that his Honor left the jury to pass, not upon the meaning of the contract, but upon the fact whether the contract, as contended for by the defеndant, was agreed to by the plaintiff. In any event the defendant was not injured by the submission of this question under the construction placed upon the contract by this Court. If the endorsement, “subject to delay,” had no legal effect, it made no difference whether or not it was assented to by the plaintiff. The petition further suggests as error that “This Court overlooked the fact that the Court below admitted newspaper extrаcts to prove the existence of a strike in New York, and to prove what was done by the railroad to relieve the situation.” We think this exception is met by the agreement of parties to admit the paper as before stated.
The petition again suggests as ei’ror that “this Court apparently overlooked the fact that it was error of law to admit the testimony as to a strike and the wages paid еmployees in
This exception is the only one that has given us any trouble, but in the view we tаke of the case it cannot be sustained. The evidence does not appear to have been entirely hearsay, as it apparently referred to what was said and done at a meeting at which the witness ivas personally present. It appears to have been suggested by a question asked by the defendant’s counsel on cross-examination. It does not refer to the strike in direct terms. In faсt, the first allusion to the strike, as far as we can see, is in the direct testimony of Townsend, a witness for the defendant. The strike is directly referred to as the cause of the delay in handling melons in a newspaper article introduced by the defendant, as shown on page 50 of the printed record. As we have said, the defendant lay tinder the burden of showing that the unreasonable delay in the delivery of the melons and the сonsequent damage to the shipper did not arise from its own negligence. The plaintiff had made out his case when he showed the shipment of the melons, their unreasonable delay in transit and the resulting damage. He had no occasion to go into any other question. If the defendant saw fit to attempt to excuse its delay by evidence of a strike it would seem that similar evidence would be equally available to the plaintiff in rebuttal. It was not at all necessary to the plaintiff in any other aspect. As was held in Hinkle v. Railroad, supra, the unreasonable delay was not only a breach of contract, but was in itself evidence of negligence.
We may here repeat what was said in Mitchell v. Railroad,
“It is the duty of a common carrier, irrespective of contract but subject to reasonable regulations, to accept, safely carry and deliver all goods entrusted to it. If the goods are lost it must show what became of them, and if they are damaged it must prove аffirmatively that they were damaged in some way that would relieve it from responsibility. The plaintiff has a prima facie case when he shows the receipt of goods by the carrier, and their non-delivery or delivery in a damaged condition. Any further defense is in the nature of confession and avoidance.”
Whether the plaintiff sued in assumpsit upon a breach of contract, or in case for the violation of a common-law duty, or on a tort based) on a contract, would not seem to be material under our present system of Code pleading. Ilis cause of action was the pecuniary loss resulting to him from the damage done to his melons by the negligent and unreasonable delay in their transmission by the common carrier, and this was clearly stated in the complaint.
We have referred principally to our own decisions, because it seemed to us that the questions necessary for the determination of this case had been already settled.
Petition dismissed.