Lee v. the Raleigh & Gaston R.R. Co.

• Decision Date: 31 January 1875
• Citation: 72 N.C. 236
• Court: North Carolina Supreme Court
• Parties: TIMOTHY F. LEE v. THE RALEIGH & GASTON RAILROAD COMPANY.

72 N.C. 236

TIMOTHY F. LEE

v.THE RALEIGH & GASTON RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1875.

Where the plaintiff contracted with the defendant, a common carrier, for the transportation of a number of horses, and the horses were placed in the defendant's cars, whose agent ordered a servant to lock the cars, and the servant was prevented from doing so by the agent of the plaintiff, and on the passage some of the horses were lost: Held, that the defendant was guilty of no negligence in failing to lock the door, and was not liable for the loss of the horses.

This was a CIVIL ACTION to recover the value of two horses, tried at the January (Special) Term, 1874, of the Superior Court of WAKE county, before his Honor Judge Tourgee.

The facts, as agreed by counsel, are substantially as follows??

On the 21st of February, 1872, the plaintiff entered into a contract with the defendant as a common carrier, by which the latter agreed to transport fifteen horses and two mules from Raleigh to Portsmouth, Va., over the Raleigh and Gaston Road and the Seaboard and Roanoke Road, for the price of one hundred dollars; and a receipt for one hundred dollars in the usual form, signed by the proper agent of the defendant, was exhibited by the plaintiff. In this receipt there was no stipulation for release of defendant's liability.

The horses and mules were placed on the defendant's cars at Raleigh, thirteen horses in one car, two horses and two mules in another--this division being made by order of plaintiff's agent. When the train arrived at Macon depot, during the night, it was discovered that one of the doors of the car containing the thirteen horses was open, and that two of the horses were missing; these two were never delivered by the defendant to the plaintiff.

The defendant offered to prove an express verbal contract between the plaintiff and the agent of the railroad, whereby the plaintiff agreed, in consideration of a reduction of the freight and free passes over the road to plaintiff's agent and servant accompanying the stock, that plaintiff would assume all risk of injury to the stock while in course of transportation, and release the defendant from any responsibility therefor; and that in pursuance of such contract, such reduction of freight and free passes were given.

The defendant further offered to prove, that after the cars were loaded, the proper agent of defendant ordered one of defendant's servants to lock the door of the car in which were the thirteen horses, and that as said servant was proceeding to do so, the agent of the plaintiff told him not to do so, as some one would ride in the car with the horses. The servant thereupon closed the door, but did not fasten it. No one in fact rode in the car, although a servant of the plaintiff did ride in the car with the two horses and two mules.

His Honor held, that if defendant proved the contract as stated, such contract would reduce the responsibility of defendant from his liability as common carrier, to that of an unpaid bailee, and that the defendant would only be liable for want of ordinary care and skill. The Court further held, that a failure to properly fasten the door of the car in which were the thirteen horses, even under the circumstances proposed to be proved...