Smith v. Atl. Coast Line R. Co

• Decision Date: 01 October 1913
• Citation: 79 S.E. 433,163 N. C. 143
• Parties: SMITH. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

79 S.E. 433

(163 N. C. 143)

SMITH.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina.

Oct. 1, 1913.

Appeal from Superior Court, Pitt County; Allen, Judge.

Action by R. L. Smith against the Atlantic Coast Line Railroad Company to recover damages for injury to a horse and a mule. Judgment for the plaintiff, and the defendant excepts and appeals. Affirmed.

This is an action to recover damages for injury to a horse and a mule, caused by the negligence of the defendant. The following verdict was returned by the jury: "(1) Was the mule mentioned in the complaint injured and killed by the negligence of the defendant? Answer: Yes. (2) If so, in what amount has the plaintiff been damaged thereby? Answer: $200. (3) Was the mare mentioned in the complaint injured by the negligence of the defendant? Answer: Yes. (4) If so, in what amount has the plaintiff been damaged thereby? Answer: $50. (5) Did the plaintiff file claims with the defendant for said injuries as set out in the complaint? Answer: Yes."

Harry Skinner, of Greenville, for appellant

W. F. Evans, of Greenville, for appellee.

ALLEN, J. [1] The plaintiff did not introduce a bill of lading, but he offered evidence tending to prove that on January 4, 1911, he purchased several horses and mules in Richmond, which were delivered to a connecting line of railway and were delivered to him at Greenville by the defendant; that he paid the freight to the defendant; and that one mule was dead and a horse injured when the cars reached Greenville. The plaintiff further testified that he was present and saw the stock loaded on the cars in Richmond, and that no bill of lading was given to him. All of this evidence was objected to by the defendant upon the ground that the contract of carriage could not be proven by parol, and at the conclusion of the evidence there was a motion for judgment of nonsuit; the defendant contending that, as no bill of lading had been introduced, the plaintiff could not recover. The position of the defendant cannot be sustained.

In Hutchinson on Carriers, § 118, the author says: "No receipt, bill of lading, or writing of any kind is required to subject the carrier to the duties and responsibilities of an insurer of the goods. As soon as they are delivered to him for present carriage and nothing necessary to their being forwarded remains to be done by the owner, the law imposes upon him all the risk of their safe custody as well as the duty to carry as directed. He is regarded as exercising in some sort the functions of a public office, and the law is said to impose upon him his duties and obligations upon this ground as well as upon the ground of the contract; and, as soon as the delivery to him and his acceptance are shown, the law imposes the duty and respousibilty in virtue of his public employment."

The Supreme Court of the United States also said in Mobile & Mon. R. R. Co. v. Jurey, 111 U. S. 591, 4 Sup. Ct. 569, 28 L. Ed. 527: "No particular form or solemnity of execution is required for a contract of a common carrier to transport goods. It may be by parol, or it may be in writing; in either case it is equally binding." And our own court declared in Berry v. Railroad, 122 N. C. 1003, 30 S. E. 14: "Delivery of a bill of lading is not necessary to fix liability upon the de-fendant. Wells v. Railroad, 51 N. C. 47 ."

No evidence was offered identifying the paper in possession of the plaintiff, or the one held by the defendant, or...