Bros v. Southern Ry. Co

• Decision Date: 13 December 1904
• Citation: 49 S.E. 84,137 N.C. 163
• Parties: WALKER BROS. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

49 S.E. 84

137 N.C. 163

WALKER BROS.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 13, 1904.

CARRIERS OF FREIGHT—DELAY IN TRANSPORTATION—PENALTY—BURDEN OF PROOF.

1. Acts 1903, p. 999, c. 590, providing that any railroad company failing to transport goods received by it for shipment, and billed to any place within the state, for a longer period than four days after receipt of the same, unless otherwise agreed between the parties, shall pay a penalty, etc., refers to a delay in beginning the transportation or starting the goods from the station of their receipt, and does not require a delivery at their destination within the time specified.

2. In an action against a railroad company, under Acts 1903, p. 999, c. 590, to recover a penalty for a delay of more than four days in the transportation of goods, the burden of showing where the delay occurred is on plaintiff.

Clark, C. J., and Douglas, J., dissenting.

Appeal from Superior Court, Alamance County; Cooke, Judge.

Action for a penalty by D. M. Walker and another, constituting the firm of Walker Bros., against the Southern Railway Company. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

This action was brought to recover the penalty for failure to transport freight given by chapter 590, p. 999, § 3, of the Acts of 1903. Plaintiffs alleged that there had been a delay of four days, and demanded judg ment for $40; that is $25 for the first day and $5 per day for the next three days of delay. The material portion of the evidence was as follows: (1) Bill of lading issued by the defendant, bearing date Cumnock, N. C, May 27, 1903, for a car load of lumber, to be transported to the defendants, at Graham, N. C. J. R. Burns was the shipper. (2) The receipt of the plaintiff for the said freight, bearing date, "Graham, N. C, June 4, 1903." D. M. Walker, one of the plaintiffs, testified that he and J. C. Walker constitute the firm of Walker Bros. The witness identified the bill of lading and freight bill hereinbefore referred to, and said the dates as therein stated were correct The plaintiffs operated a sawmill situated about 160 feet from the main line of the North Carolina Railroad Company, some 300 or 400 yards east of the station at Graham, in Alamance county, and were accommodated by what is ordinarily known as an industrial or spur track running from the main line into their yard, which is inclosed. When they receive freight by the car load, the car is placed by the defendant on this spur track and unloaded in the millyard of the plaintiffs. The car in question was delivered to them in their yard on June 4, 1903. The bill of lading was received by the plaintiffs through the mails about the 28th May, 1903. Plaintiffs made demand upon the agent of defendant at Graham. The spur or industrial track was put in at the instance of the plaintiffs, and operated, as witness supposed, for the accommodation of both the plaintiffs and defendant, as the cars could be unloaded sooner. No extra charge was demanded or made against the plaintiffs for shifting and carrying cars from the main track of the defendant into the yard of the plaintiffs by means of the spur track. The cars containing freight for other parties were not put upon the spur track of plaintiffs without their permission, nor carried inside the gate of plaintiffs' yard. The witness did not know of his own knowledge when the car in question arrived at Graham Station. The train passed, but he did not see it come. The freight in question was brought in the car from Cumnock by way of Greensboro, and from the latter place to Graham. There are four stations or stops between Greensboro and Graham, and ten stations between Greensboro and Cumnock. The 31st day of May, 1903, was Sunday. Witness made demand on the railroad company for the car of freight in question, and at that time the car had not arrived in Graham. It was admitted by the parties that the defendant transported freight and passengers through several states, including this state, and is engaged in interstate commerce; and it was admitted that Cumnock and Graham are stations on different roads, both of which are operated by defendant within this state. Plaintiffs here rested their case. The defendant thereuponmoved to nonsuit the plaintiffs, under the statute, which motion was allowed, and judgment was rendered accordingly. Plaintiffs excepted and appealed.

Long & Long, for appellants.

P. H. Busbee and King & Kimball, for appellee.

WALKER, J. (after stating the facts). It is provided by Acts 1903, p. 999, c. 590, § 3, that any railroad company failing to transport goods received by it for shipment, and billed to any place in this state, for a longer period than four days after the receipt of the same, unless otherwise agreed between the parties, or allowing such goods to remain at any intermediate point more than forty-eight hours, shall pay to the party aggrieved a penalty of $25 for the first day, and $5 for each succeeding day, of unlawful delay or detention, if the shipment is in car-load lots, and, if in smaller quantities, then a less sum, which is prescribed by the act. The plaintiffs claim that by the statute the defendant is allowed only four days to make the shipment, and any delay beyond that time subjects it to the penalty. We do not think that is the proper construction of the law. The word "transport" does mean to carry or convey from one place to another, but it also means to remove, and this is one of its primary significations, according to the lexicographers Whatever may be the precise meaning of the word when considered by itself and apart from the special connection in which it is used, the context of the act under review clearly shows that the Legislature did not intend to be understood as requiring the entire transit to be made within four days from the receipt of the goods. Such a construction might produce serious results, and impose upon transportation companies not only a very onerous duty, but one which in some cases it would be difficult, if not impossible, to perform. It has been said that in regard to laws, as in other cases, difficulties will arise, in the first place, from the disputed meaning of individual words, or, as it is usually expressed, of the language employed, and, in the second place, assuming the sense of each separate word to be clear, doubt will result from the whole context. This is due in large measure to the imperfection of language and its inadequacy in conveying our meaning. We must therefore regard the context and the general scope of the law, as well as the mischief to be suppressed and the remedy provided for that purpose, so as to arrive at the intention of the Legislature. "When we see what is the sense that agrees with the intention of the instrument [or statute], it is not allowable to wrest the words to a contrary meaning. No text imposing obligations is understood to demand impossible things." Sedgwick, Stat. & Const Law (1857) c. 6, pp. 225-235. Whenever the intention can be discovered it ought to be fol lowed, with reason and discretion, in construing the statute, although it may not seem to conform to the letter. Sedgwick, supra. We have no doubt as to the true intention of the Legislature in passing this act. The very phraseology of the statute indicates clearly the purpose that the...