Asheville & E.T.R. Co. v. Baird

• Decision Date: 13 December 1913
• Parties: ASHEVILLE & E. T. R. CO. v. BAIRD ET AL.
• Court: North Carolina Supreme Court

80 S.E. 406

164 N.C. 253

ASHEVILLE & E. T. R. CO. v. BAIRD ET AL.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Buncombe County; Foushee, Judge.

Action by the Asheville & East Tennessee Railroad Company against W A. Baird and another. From a judgment against the defendant named, he appeals. Affirmed.

When a bailor proves loss or injury to the property while in the care of the bailee, or failure to redeliver on demand, or delivery in a damaged condition, the burden of proof shifts to the bailee to show freedom from negligence.

Civil action upon these issues:

(1) Did the plaintiff deliver to the defendants, or either of them, a railroad freight car, as alleged in the complaint? If so, to whom? Answer: Yes, as to W. A. Baird.

(2) Was said car injured and damaged by the negligence of the defendants, or either of them, as alleged in the complaint? If so, by whom? Answer: Yes, W. A. Baird.

(3) What damage, if any, is the plaintiff entitled to recover by reason of such negligence? Answer: $354.28, with interest from date of payment of bill.

The court rendered judgment against the defendant W. A. Baird who appealed.

W. P Brown and J. D. Murphy, both of Asheville, for appellant.

Merrimon, Adams & Adams, of Asheville, for appellee.

BROWN J.

This record contains 31 exceptions, 17 of which are to the rulings of the court upon the admission of testimony. Impressed by the earnestness of the learned and able counsel for the defendant Judge Murphy, we have scrutinized each of these assignments of error, with great care, but are unable to find any error which warrants another trial of this case. The weight of the evidence tends to prove very clearly that the plaintiff at the instance of the defendant Baird delivered to him a freight car, and placed it securely chocked on a side track to be loaded by Baird with acid wood for shipment over plaintiff's road and its connections. During the progress of the loading of said car by the servants of the said Baird, they undertook, after the car had been pratically loaded, to move it, and, in order to do so, they negligently removed all the scotches placed under said car by the plaintiff for the purpose of holding the same. The car had been placed on a side track of the plaintiff in a location convenient for the loading of the wood by the said Baird, on a grade of about 2 per cent., and, when the scotches and brakes were removed by the servants of the defendants, the car got from under their control and was permitted to run out on the main line of the plaintiff, and finally, after running along the main line for some distance, left the track and was thereby injured and damaged. The car was the property of the Southern Railway Company, and was being used by the plaintiff under its traffic arrangements with the Southern. The plaintiff paid the Southern the sum of $354.28 damages to the car.

It is contended that the plaintiff cannot recover because the car was not the property of the plaintiff, but of the Southern Railway Company, and that, if the real owner had brought the action, the defendant could have successfully defended against it. The jury has found that the car was delivered by the plaintiff, Asheville & East Tennessee Railroad Company to the defendant W. A. Baird, and the relation existing between the plaintiff and the defendant was...