Son v. Atl. Coast Line R. Co
Decision Date | 20 March 1906 |
Citation | 53 S.E. 362,140 N.C. 581,140 N.C. 574 |
Parties | A. F. JOHNSON & SON. v. ATLANTIC COAST LINE R. CO. |
Court | North Carolina Supreme Court |
In an action against a railroad company for setting fire to plaintiff's factory by sparks from an engine, testimony that witness rode on what he thought was the same train on the following day, and when it stopped at a station a car load of cotton seed hulls attached to the train was on fire, but not stating that the engine emitted sparks or set fire to the hulls, was not admissible.
[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1719-1723.]
Where it is impossible for the Supreme Court to see what weight the jury attached to evidence improperly admitted, it will grant a new trial.
Evidence that sparks came from the engine on the day after plaintiff alleged the train had set fire to his factory was admissible in an action therefor.
[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1719-1723.]
The court may take notice of the distance between station towns on a certain railroad.
[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 14.]
Where, in an action against a railroad company for setting fire to plaintiff's factory, the evidence was circumstantial, and witnesses had testified to various facts introduced for the purpose of excluding the suggestion that the fire was caused by sparks from the engine, it was proper to impeach him by asking him if he had not stated that the fire was caused by sparks from the engine and to prove that he made such statements.
[Ed. Note.—For cases in point, see vol. 50. Cent. Dig. Witnesses, § 1247.]
In an action against a railroad company for damages for burning plaintiff's factory, plaintiff was entitled to recover definite prospective profits, and might give evidence of contracts calling for a certain output at certain profit.
[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, §§ 72-88.]
Appeal from Superior Court, Sampson County; W. R. Allen, Judge.
Action by A. F. Johnson & Son against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and both parties appeal. Reversed.
Civil action for the recovery of damages for the alleged negligent burning by defendant corporation of building used by plaintiffs A. F. Johnson & Son for the manufacture of crates, baskets, etc. Plaintiffs set forth in their complaint that etc. Defendant, not having sufficient knowledge or information to form a belief, denied this allegation. The plaintiffs, upon the issue in regard to damages, offered to show that they had a contract with the East Carolina Fruit Packing Company to deliver 75, 000 berry crates at a fixed profit of $3,500; that they had accumulated the material to complete this contract, and had the same on hand on Nov-ember 29, 1904, when they were burned out; that it was impossible to replace this material in any of the markets of the country and they lost the year's work; their laborers and servants were,, for a long time, idle upon their hands, at heavy expense. This testimony was, upon defendant's objection, excluded. Plaintiffs excepted, and assigned as error upon the issue in regard to damages the rejection of the proposed testimony.
Grady & Graham, for plantiff.
Junius Davis and Stevens, Beasley & Weeks, for defendant
Plaintiffs' Appeal.
CONNOR, J. (after stating the facts). His honor, we presume, was of the opinion that the anticipated profits to be derived from completing the contract made by plaintiffs with the fruit packing company for the manufacture and delivery of the crates were too speculative and conjectural to form the basis of a claim for damages. While this court has uniformly adhered to the rule in Hadley v. Baxendale prescribing the measure of damages recoverable for breach of contracts, we find no decision controverting the proposition, held by other courts and laid down by many text-writers, that in actions founded upon a pure tort a different rule prevails. Mr. Sutherland, after discussing many decided cases, says: 1 Damages, 16. Hale on Damages, 36; 8 Am. & Eng. Enc. 625.
Sledge v. Reid, 73 N. C. 440, was an action of trover, for the wrongful taking of plaintiff's mule. Bynum, J., said: "Consequential damages to be recovered in an action of tort must be the proximate consequence of the act complained of, and not the secondary result thereof." The court in Welch v. Piercy, 29 N. C. 365, thus states the same doctrine: "Every man, in law, is presumed to intend any consequences, which naturally flow from an unlawful act, and is answerable to private individuals for any injury so sustained." Whatever distinctions may be recognized between actions founded upon tort, pure and simple, and those In which the cause of action is tort growing out of a breach of contractual duty, such as actions by passengers for wrongful ejection, shippers for failure to deliver freight, or parties in interest for failure to deliver telegrams, it is well settled that when the cause of action is based upon a wrongful invasion of plaintiff's rights of person or property, he may recover all such damages, either direct or consequential, as flow naturally and proximately from the trespass. When the action is for breach of contract, the damages recoverable are such as naturally flow from the breach and such special or consequential damages as are reasonably presumed to have been with the contemplation of the parties at the time they made the contract as the probable result of a breach of it. In ascertaining what damages come within the rule, it is proper to examine, not only the terms of the contract, the subject-matter, etc., but also to inquire whether such circumstances or conditions as produced special damages were communicated to the defendant. We apprehend that the same rule prevails when an action in the nature of tort is brought for the breach of a duty arising out of contract. Williams v. Telegraph Co., 136 N. C. 82, 48 S. E. 559; Dayvis v. Telegraph Co., 139 N. C. 79, 51 S. E. 898. In Lee v. Railroad (N. C.) 48 S. E. 809, it is said: "It is immaterial whether we treat the cause of action as for a breach of contract, or for a negligent omission to perform a public duty arising out of contract." We were then considering the measure of damages for failure to deliver freight. When a party commits a trespass, he must be held to contemplate all the damages which may legitimately follow from his illegal act. In Brown v. Chicago, etc., Railroad Co., 54 Wis. 354, 11 N. W. 361, 41 Am. Rep. 41, it is said: "The general rule is that the party who commits a trespass or other wrongful act is liable for all the direct injury resulting from such act, although such resulting injury could not have been contemplated as the result of the act done." Judge Christiancy in Allison v. Chandler, 11 Mich., at page 561, says: Stevens v. Dudley, 56 Vt. 158.
We are thus brought to a consideration of the question whether the proposed testimony was competent to be considered by the jury in assessing plaintiffs' damages. Hale on Dam. 72. The rule is subject, however, to the modification that if the profits lost by defendant's tortious conduct, proximately and naturally flow from his act and are sufficiently...
To continue reading
Request your trial-
Stewart v. Cary Lumber Co
...is liable for all damages which proximately flowed from the act. Ramsbottom v. Railroad, 138 N. C. 38, 50 S. E. 448; Johnson v. R. R., 140 N. C. 574, 53 S. E. 362; Hale on Damages, 36-38. Hence the plaintiff's cause of action is the wrongful act of the engineer and other servants, and he re......
-
State ex rel. Shatzer v. Freeport Coal Co.
...which they proceed. Wolff v. Hyass, 11 Misc. 561, 32 N.Y.Supp. 798. Lowrie v. Castle, 225 Mass. 37, 113 N.E. 206; Johnson v. Atlantic Coast Line [R. Co.], 140 N.C. 574, ; 17 C.J. Page 794, Sec. 116. 'The modern rule, however, does not deny a recovery of profits because of the fact that they......
-
Blis Day Spa, LLC v. Hartford Ins. Group
...the contemplation of the parties at the time they made the contract, as the probable result of a breach of it." Johnson v. Railroad Co., 140 N.C. 574, 577, 53 S.E. 362 (1906). Whether special damages arising from the breach of a contract may be regarded as "within the contemplation of the p......
-
Stewart v. Cary Lumber Co.
... ... corporation. But where the agent, going out of the line of ... his duty, beyond the scope of his agency and not in ... furtherance of his master's ... ...