Waters v. Richmond & Danville Railroad
14 S.E. 802
N.C.
1892
Check Treatment
Davis, J.

after stating the case: When this case was before us on the former appeal (108 N. C., 349) the Court said that the Judge below very properly declined to give the instruction that the “ contract was based upon an illegal consideration and was void, * * * as there is not the slightest illegality, either in the consideration or promise. . The consideration was the sum of $58.50, and the promise was to transport the cattle so as to reach the city of Charleston on Saturday. We presume that the defendant intended to pre *341 sent the question as to the effect of the alleged illegal purpose of the plaintiff, but as the point is not presented in the prayer for instruction we do not feel at liberty to pass upon it in this appeal.” The question which the Court declined to pass upon, because not presented by the prayer for instruction, is now directly presented by the prayer, but there is no issue to which the prayer for instructions is applicable. There was no objection to the issues framed, and none was tendered as to the purpose of the plaintiff with regard to the sale of cattle on Sunday, or of the knowledge of the defendant of his purpose, but there was evidence tending to show the plaintiff’s illegal purpose to sell on Sunday, and that that purpose was communicated to the defendant. The jury were instructed, at the request of the defendant, that “if the plaintiff had in his mind, at the time of making the alleged contract, the purpose to sell his cattle or expose them for sale in Charleston on Sunday, and communicated his purpose to the defendant, and the contract was made with this understanding, then it is void and the plaintiff is not entitled to recoverand we think this instruction was fully as liberal as the defendant was entitled to bearing upon the illegality of the contract; and though the question was not presented by any issue, we deem it proper to say- that railroad companies are public carriers of passengers and freight, and they, cannot exempt themselves from liability for damages by reason of the fact that freight is to be used for some illegal purpose at the point of destination, or that the object of the passenger is to do some illegal act at the point of destination, even if the railroad company had knowledge of the illegal purpose, unless that illegal purpose was the consideration and inducement of the contract. The railroad company has no right to say to the passenger or to the shipper, “ 1 will not transport you or your freight, for it is your purpose to do some unlawful act,” but if it makes some special contract, riot in the regular order of transportation, as, for instance, to *342 furnish a-special train to passengers to go to a particular point to engage in a prize fight, the contract will be illegal and void, and no action could grow out of it. An illegal contract furnishes no ground, in law, of action; but the railroad is not exempt from liability for negligence, even though the purpose of the shipper or passenger be illegal, unless the illegal purpose enter into the consideration of the contract of transportation.

The twenty-first prayer for instruction which the Court refused to give was: “ Plaintiff can recover nothing for the drift at Columbia nor for his expenses there, and nothing for the drift at Taylorsville, except for such as would have occurred notwithstanding good care and attention.” It is in evidence that the cattle were shipped, but not under the contract for the breach of which this action is brought. The plaintiff himself testified, “ I shipped my cattle on a written contract different from the one first made.” There is no allegation in the complaint of any breach of the written contract under which the plaintiff shipped his cattle, nor of any damage by reason of detention in Columbia. The written contract under which the cattle were shipped was made, according to the evidence, after the plaintiff reached Tay-lorsville, and after the breach of the parol contract, for the breach of which this action is brought, and his Honor erred in refusing the last instruction.

Error.