Appeal
from superior court, Rowan county; Timberlake, Judge.
Action
by J. W. Gardner against the Southern Railway Company. From a
judgment in favor of plaintiff, defendant appeals. Affirmed.
Where
in a suit against a carrier for the value of a shipment lost
by its negligence, defendant sets up an agreement fixing the
value of the articles lost, the burden is on it to show that
the agreement was reasonable.
DOUGLAS
J.
This is
an action for the value of a car load of stone destroyed
through the negligence of the defendant. The following, taken
from the case on appeal, includes all the evidence offered by
either side: "It was admitted by defendant that it was
negligent, and liable for the value of the stone lost and
destroyed; but defendant contended that the value was the
amount agreed on in the bill of lading. Plaintiff testified
that two years ago defendant placed a car on a siding about
four miles from Salisbury to enable him to load the same with
stone for shipment to Danville, consigned to a purchaser
there, whose name appears in the bill of lading. After the
car was loaded, it was moved by the company to another place
and afterwards got loose, and became a wreck, by reason of
defective brakes. There was no depot at the siding, nor was
there an agent at that point. Plaintiff obtained from the
agent at Salisbury a blank bill of lading, and filled it up
in his handwriting, and signed the same. He was instructed
how to do this by the agent, and also instructed to value the
load of stone at the rate of 20 cents a cubic foot, which, as
plaintiff further testified, amounted to the sum of $46.60.
Plaintiff testified that the stone was worth $218. This was a
release shipment. Defendant objected to plaintiff's
testifying that the stone was worth a greater sum than the
amount specified in the contract or bill of lading. Objection
was overruled, and there was an exception to this ruling by
defendant. Defendant introduced the bill of lading, which was
admitted to be in the handwriting of and signed by
plaintiff." It is unnecessary to set out the bill of
lading in full, as the greater part of it has no relation
whatever to the question at issue, and apparently was never
intended to have. It seems to be a general form used
indiscriminately for all kinds of business, and merely filled
in with a few names and figures to fit in some degree the
particular shipment. That it is not a special contract for
this particular car load of stone shipped from a siding near
Salisbury to Danville is apparent from the following express
stipulations. Among other things, the bill of lading, which
is of considerable length, provides that: "As the
packages aforesaid must pass through the custody of several
carriers, it is understood, as a part of the consideration on
which said packages are received, that the exemptions from
liability made by such carriers respectively shall operate in
the carriage by them respectively of said packages as though
herein inserted at length, and especially that neither said
carriers, nor either of them, shall be liable for leakage of
any kind of liquids, nor for the losses by the bursting of
casks or barrels of liquids arising from expansion and
unavoidable causes, breakage of any kind of glass, carboys of
acid, or articles packed in glass, stoves or stove furniture
castings, machinery, carriages, furniture, musical
instruments of any kind, packages of eggs, or for loss or
damage on hay, hemp, cotton, or the evaporation or leakage of
alcohol, or leakage of oil of any description, or for damage
to perishable property of any kind occasioned by delays of
any kind or change of weather, or for the loss or damage on
the sea or rivers. *** It is further understood and agreed
between the parties hereto that the railway company above
mentioned, or any connecting railroad company, shall not be
liable for any damages by
fire, or collisions on the rivers and sea, or for loss or
damage by storm or accident on water, as the Southern Railway
Company and connecting railroads assume no marine risks
whatever." On its face appear the following words and
figures: "Val. 20 cts. Cubic foot." This is the
only allusion it contains as to the value of the stone; nor
is there the slightest intimation that this valuation in any
way affected the rate of freight, or was based upon any
consideration inuring to the plaintiff. It is not even
stipulated that this valuation shall be binding upon either
party, unless it is found by implication in the following
clause: "In consideration of the facilities afforded by
this through bill of lading and the through rates of
transportation agreed upon, ___ hereby consent to all of its
provisions, and expressly agree to release the transportation
companies and lines concerned in this bill of lading from any
and all marine risks." It is somewhat...
