Harper Furniture Co. v. Southern Express Co.

• Decision Date: 22 May 1907
• Citation: 57 S.E. 458,144 N.C. 639
• Parties: HARPER FURNITURE CO. v. SOUTHERN EXPRESS CO.
• Court: North Carolina Supreme Court

57 S.E. 458

144 N.C. 639

HARPER FURNITURE CO. v. SOUTHERN EXPRESS CO.

Supreme Court of North Carolina

May 22, 1907

Appeal from Superior Court, Caldwell County; Bryan, Judge.

Action by the Harper Furniture Company against the Southern Express Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

The court will take judicial notice, as a matter of common knowledge, of the facts that railroads connect the city of Lenoir, in North Carolina, with the principal trunk lines leading north, that the city of Erie, Pa., is accessible by railway, that express companies provide greater dispatch in the delivery of freight than other carriers, that they select for their business the most direct routes, and that 14 days is too long a time for the transportation of goods by express between Erie, Pa., and Lenoir, N. C., though the court cannot take judicial cognizance of the facts necessary to determine how much too long a time is taken.

Civil action to recover damages for delay in shipment of goods by express, tried before his honor, Henry R. Bryan, judge, and a jury, at November term, 1906, superior court, Caldwell county. G. F. Harper, for plaintiff, and being the only witness examined, testified as follows: "I am a member of the firm trading under the name of the Harper Furniture Company, and am general manager of the same. On October 28 1905, witness received a through bill of lading by mail from Erie, Pa., to Lenoir, N. C., issued by the Adams Express Company, as shown on the face of the bill, and which showed that, on the 26th day of October, 1905, a certain engine shaft and crank had been delivered to the said Adams Express Company, by the Erie City Iron Works of the said city of Erie, Pa., and from which the plaintiff had ordered the said shaft and crank a few days before. Said bill of lading showed on its face that the shaft was to be delivered in Lenoir, N C., by the company issuing it and its connecting lines. The shaft did not reach Lenoir until the 9th day of November 1905. Upon its arrival in Lenoir it was delivered to me by the agent of the defendant Southern Express Company, and I paid him the sum of $26.50, as the freight charges for the transportation over the entire line from Erie to Lenoir. During all the time it was on the road and before, our factory was standing idle, as we could not turn a wheel without the shaft. We made, both before the shaft broke and after the repairs were made, $30 per day net profits on the output of the mill, and we could have made the same, had we received the shaft in proper time. We were forced also to turn down orders which we could have filled at a profit of $300 had the machinery been received in proper time." Cross-examined: "I have no means of knowing where the delay occurred, whether on the line of the initial company or on that of the defendant company. I do not know whether there were traffic arrangements between the two companies further than is shown by the bill of lading, which was a through bill from Erie to Lenoir, and from the fact that I paid the freight for transporation to the agent of the defendant company at Lenoir, N. C." At the close of the testimony, defendant moved to dismiss the cause as on judgment of nonsuit. The motion was allowed, and plaintiff excepted and appealed.

Jones & Whisnart, for appellant.

W. C. Newland and John A. Barringer, for appellee.

HOKE, J. (after stating the case).

It is said by McKelvey, in his work on Evidence, that there is a class of facts of which a court may take judicial notice in its sound legal discretion, and supporting them is the single principle of common notoriety; the vital question being whether sufficient notoriety attaches to any particular fact as to make it safe and proper to assume its existence without proof. McKelvey, pp. 33, 34. Speaking further of this class of facts, the same author says: "In every case, the particular circumstances must govern, and no general rule can be laid down. The decisions in particular cases are very useful, as they serve to furnish illustrations by way of analogy. They are not useful as precedents, inasmuch as the same facts may, at a different time and under different circumstances, be entitled to different treatment." Speaking to the same principle, Prof. Wigmore, in his work on Evidence (section 2580) says: ""Applying the same general principle [as to judicial notice] especially in regard to the element of notoriousness, courts are found noticing from time to time a varied array of unquestionable facts ranging throughout the data of commerce, industry, history, and natural science. It is unprofitable as well as impracticable to seek to connect them by generalities and distinctions, for the notoriousness of a truth varies with differences of time and place. It is even erroneous in any, if not in most, instances, to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance." And, in section 2581: "Among the common instances under this miscellaneous class are the facts of time, season, and distance; though here, also, the quality of notoriousness will naturally vary with the place and epoch as well as with the greater and less accuracy involved in the facts desired to be noticed." Accordingly, it is generally held that the courts will take judicial notice of the placing of the prominent towns within their jurisdiction, and especially of county sites, their accessibility by railroads connecting them with the trunk lines of the country; and there is well considered authority to the effect that courts may also take such notice of the distance to prominent business centers of other states, their accessibility by railway, and the time between them by the usual routes and methods of travel, to the extent that these facts are sufficiently notorious as to make their assumption safe and proper. Life Ins. Co. v. Robinson, 58 F. 723, 7 C. C. A. 444, 22 L. R. A. 325; Williams v. Brown (Sup.) 65 N.Y.S. 1049; Morgan v. Farrell, 58 Conn. 413, 20 A. 614, 18 Am. St. Rep. 282; Pearce v. Langfit, 101 Pa. 507, 47 Am. Rep. 737; 17 Amer. & Eng. Ency. 905; 16 Cyc. 861; Greenleaf's Evidence, vol. 1, § 5; Wharton's Evidence, vol. 1, § 340. And, with this limitation, judicial notice may also be taken of the general business methods of railway and other well-known or quasi public corporations, when these methods are universally practiced or commonly known to exist. Wigmore on Evidence, § 2580; McKelvey on Evidence, 32; Bank v. Hall, 83 N.Y. 338, 38 Am. Rep. 434; Railroad v. Miller, 25 Mich. 275.

The present case affords an apt illustration of the rule and the limitation suggested, and the doctrine has been stated at some length in order that the parties may be correctly guided in its application on the further trial of the cause. The court...