West Const. Co. v. Atlantic Coast Line Ry. Co.

• Decision Date: 21 February 1923
• Docket Number: 217.
• Parties: WEST CONST. CO. v. ATLANTIC COAST LINE RY. CO.
• Court: North Carolina Supreme Court

116 S.E. 3

185 N.C. 43

WEST CONST. CO. v. ATLANTIC COAST LINE RY. CO.

No. 217.

Supreme Court of North Carolina

February 21, 1923

Appeal from Superior Court, Lenoir County; Lyon, Judge.

Action by the West Construction Company against the Atlantic Coast Line Railway Company. Judgment for plaintiff for part only of amount claimed, and both parties appeal. No error.

An instruction which, after stating the respective contentions of the parties, directed the jury to allow such consequential damages as were caused by defendant's negligence, though concise, presented the chief feature of the controversy on that issue, and was sufficient in the absence of appropriate prayers by plaintiff for specific instructions.

Civil action tried before Lyon, J., and a jury at the June term 1922, of the Superior court of Lenoir county. The issues and the answers are as follows:

(1) Was the plaintiff's plant and property injured by negligence of the defendant, as alleged in the complaint? A. Yes.

(2) Did the plaintiff, by its own negligence, contribute to its own injury and loss as alleged in the answer? A. No.

(3) What damage is the plaintiff entitled to recover of the defendant by reason of the injury done to its physical plant and property? A. $9,000 and interest.

(4) What other consequential damage is plaintiff entitled to recover of defendant? A. Nothing.

On the verdict judgment was rendered from which both parties appealed.

Cowper Whitaker & Allen, of Kinston, for plaintiff.

Rouse & Rouse, of Kinston, for defendant.

Defendant's Appeal.

ADAMS J.

The plaintiff is a corporation engaged in the business of constructing streets and highways, and at the time of the alleged injury to its plant (September 30, 1920) was building improved roads in the county of Lenoir. An extensive system of railways is operated by the defendant, a part of whose line is between Weldon and the city of Kinston. For the purpose of prosecuting its business the plaintiff erected an asphalt plant within or near the corporate limits of Kinston and on the 6th day of April, 1920, entered into a written agreement with the defendant, by the terms of which a spur track was constructed from the defendant's roadbed across and beyond its right of way and on the plaintiff's land in order to deliver thereon cars and material for the benefit of the plaintiff. At the trial the plaintiff offered evidence tending to show the following as facts: A decline in the grade of the spur track extended some distance from the defendant's roadbed to a level space, from the further part of which there was an up grade to the plant; that for five or six months the defendant in pursuance of its agreement had regularly left the ingoing freight cars on the spur track about 50 feet from the plaintiff's buildings; and that these cars were thence carried by the plaintiff's tractor to a trestle at or near the plant, and were there unloaded by opening the bottom of each car and transferring the contents into a hopper underneath. Near the end of the track at the trestle there was a bumper, 12X12, which was secured to the ties by a steel rod or bolt. The injury occurred on Monday morning. On the Saturday preceding the defendant switched three loaded cars into the "siding" or spur track, one with and two without brakes. On the last two the plaintiff's employees "tied" the brakes and chocked the wheels. On Monday morning the defendant shunted or "kicked" into the spur track other loaded cars, which, released from the engine, struck those already on the track with such violence as to force them up the grade. One of the cars "jumped and straddled the bumper" and ran into the plant, moving it off its base, throwing the shafts out of line, changing the structual work from a square to an angle, and doing other damage.

The defendant denied negligence, and introduced evidence tending to show that the engine was moving at about four miles an hour when the cars were transferred to the spur track, and that when the engine was a car length from the main track the engineer received a signal to stop, and at once applied the brakes. The engineer testified: "When I applied my brakes couplings were not made back of where we coupled and it caused the cars to run back and hit the others"--and gave his explanation of the attendant circumstances. The defendant alleged that the injury was caused by the plaintiff's contributory negligence in constructing its plant in violation of the written agreement, and, entering sundry exceptions, contended that the plaintiff's cause of action, if any, was thereby barred. The first and second exceptions are clearly untenable and require no discussion. The third, fourth, and fifth present the defendant's objection to evidence offered by the plaintiff to show that the capacity of the plant after the repairs were completed was much less than it was before the injury.

The plaintiff repaired the machinery, but contended that, as a result of the injury, the former capacity of the plant could not be restored. We understand the defendant to argue, not that the work was negligently done, but that the court should not have admitted evidence tending to show both the cost of the repairs and the diminished capacity of the plant after the repairs were made. In view of the evidence we perceive no reversible error in the admission of this evidence.

When a trespass committed upon personal property results in an injury less than the destruction or deprivation of the property, or in an action for a negligent injury to real property, the measure of damages is the reduced market value of the property proximately caused by the negligent act, and the rule generally adopted is to allow the plaintiff the difference between the market value of the property immediately before the injury occurred and the like value immediately after the injury is complete. Sedgwick on Damages, vol. 2, § 435; Id., vol. 3, § 935a; Sherman & Redfield on Negligence, vol. 3, § 750; Spiers v. Halsted, 74 N.C. 620; Heiser v. Mears, 120 N.C. 443, 27 S.E. 117; Jenkins v. Lumber Co., 154 N.C. 355, 70 S.E. 633; Farrall v. Garage Co., 179 N.C. 389, 102 S.E. 617; Cauble v. Express Co., 182 N.C. 448, 109 S.E. 267. His honor did not state this rule literally, but he evidently admitted the evidence for the purpose of enabling the jury to obtain the same result--the decreased value of the property, which was the measure of the plaintiff's actual loss. If as a proximate result of the injury the machinery could not be restored to its former capacity, why was not evidence of its impaired capacity admissible for the purpose of showing the extent of the damage and the decreased value of the plant? The fact that a witness was permitted to express his pecuniary estimate of such diminished capacity, particularly since he was subjected to the cross-examination of the defendant, does not entitle the defendant to another trial.

Nor can we sustain exception 6, 7, or 8. Since the jury answered the fourth issue "nothing" we do not see any prejudicial error in the admission of evidence relating to the value of the contract between the plaintiff and the highway commission or to the defendant's knowledge of the purpose for which the plant was to be used; and the admission of the excerpts from the defendant's answer is sanctioned by the decisions in Weston v. Typewriter Co., 183 N.C. 1, 110 S.E. 581; White v. Hines, 182 N.C. 275, 109 S.E. 31.

The ninth and tenth exceptions involve the soundness of the defendant's motion to dismiss the action as in case of nonsuit. This motion is based primarily upon the plaintiff's alleged breach of section 7 of the written contract. The section is as follows:

"The shipper shall not erect or permit to be erected any

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