Wells v. The Wilmington and Weldon Rail Road Co.

• Decision Date: 31 December 1858
• Court: North Carolina Supreme Court
• Parties: THEOPHILUS B. WELLS v. THE WILMINGTON AND WELDON RAIL ROAD COMPANY.

6 Jones (NC) 47

51 N.C. 47

72 Am.Dec. 556

THEOPHILUS B. WELLS

v.THE WILMINGTON AND WELDON RAIL ROAD COMPANY.

Supreme Court of North Carolina.

December Term, 1858.

An action cannot be maintained against a railroad company as a common carrier for the loss or destruction of goods deposited on the road side, at a place where there was no regular station, and no agent, although a conductor of a freight train had promised to stop and take them.

Roadside deposits, made to save the trouble of hauling to a regular depot, are at the risk of the owners, until they are put on a freight car.

ACTION on the case, tried before ELLIS, J., at the Spring Term, 1858, of Edgecome Superior Court.

The plaintiff declared against the defendants as a common carrier.

The plaintiff placed eighty or one hundred barrels of turpentine at a point on the defendant's railroad, called “The Nicholson place,” to be carried on a freight train to a distillery at Battleboro'. The place where the turpentine was deposited, was not a regular station on the road. They had no warehouse nor employees there, but frequently took on freight from that point. Two different conductors had promished, soon after the turpentine was placed at the point above named, to take it to the distillery “as soon as they could,” which not being done for some weeks, the plaintiff applied to another conductor, who said “he would carry it on the following Monday morning; that he thought he could do so at that time.” On that morning, some turpentine was taken from the “““Nicholson Place” to Battleboro', but none of the defendant's, although there were empty cars in the train. The plaintiff's turpentine while lying at the Nicholson Place, was destroyed by fire.

The Court intimated an opinion that the plaintiff could not recover on this state of the facts, on which he submitted to a nonsuit, and appealed.

Conigland, for the plaintiff .

Moore and Dortch, for the defendants .

PEARSON, C. J.

The declaration is against the defendant as a common carrier, for the loss of the turpentine. We concur in the opinion that the proof does not make out the case. The liability of a rail road company, as a common carrier, does not begin until the article is received by its agent, and is put into its custody for the purpose of being carried on the road. If the article is put on the platform at the company's depot, with the knowledge of the agent, that amounts to an acceptance, and it is not necessary that it should be entered on the way bill or freight bill, or any written memorandum made, in order to make the company liable for it to the same extent as after it is actually put on a freight frain; for its...