Whitney Mfg. Co. v. Richmond & D.R. Co.

• Decision Date: 23 February 1893
• Parties: WHITNEY MANUF'G CO. v. RICHMOND & D. R. CO.
• Court: South Carolina Supreme Court

17 S.E. 147

38 S.C. 365

WHITNEY MANUF'G CO. v. RICHMOND & D. R. CO.

Supreme Court of South Carolina

February 23, 1893

Appeal from common pleas circuit court of Spartanburg county; T. B Fraser, Judge.

Action by the Whitney Manufacturing Company against the Richmond & Danville Railroad Company for the loss of goods. The court granted a nonsuit, and plaintiff appeals. Affirmed.

The grounds of appeal were as follows: (1) In allowing testimony introduced, going to show why the Whitney switch, where the cotton was burned, was put in. (2) In refusing to allow the witness Dr. C. E. Fleming to testify that his course of dealing with defendant company at Whitney switch was identical with that at Archer switch, and that Archer switch was considered as in the yard. (3) In holding that the mere placing of the cars of cotton on side track at Whitney switch was a delivery of the cotton to plaintiff, and that there was no further liability on defendant with reference to it, and in granting the nonsuit. (4) In not holding that, as long as the cotton was in one of defendant's cars, it was in defendant's possession, and defendant was liable for loss by fire. (5) In not holding that, even if defendant's liability as a common carrier ended when car was placed on side track, it then became a warehouseman, and was liable as such, unless plaintiff had had a reasonable time to remove the cotton, and in not leaving it to the jury to say whether there had been such reasonable time. (6) In not at least leaving the question of fact to the jury, whether there had been any such course of dealing between plaintiff and defendant as would make the placing of the car on the side track a delivery of the cotton, and in not refusing to grant the nonsuit. (7) In not holding that, even if not liable as common carrier or as a warehouseman, still there was evidence enough to go to the jury, tending to show that the cotton while on defendant's right of way, was burned by fire from one of defendant's locomotives, and in not refusing the nonsuit. (8) In granting the nonsuit, and dismissing the complaint, with costs.

Bomar & Simpson, for appellant.

Duncan & Sanders, for respondent.

POPE J.

The plaintiff (appellant) shipped by the defendant (respondent) 13 bales of cotton in December, 1889. It appears from the case that they had made an arrangement with each other whereby all machinery and cotton shipped by the appellant over the respondent's road should be delivered at a switch known as the "Whitney Switch," it being a side track alongside the respondent's leased railroad about two miles distant from Spartanburg,--this Whitney switch having been graded by the appellant, and the track thereof having been constructed by the respondent. No other customer of the respondent, other than the plaintiff (appellant), ever used said Whitney switch as the point of delivery by the respondent. The cotton having been destroyed by fire some time in December, 1889, while the same was being unloaded from a car of the defendant (respondent) placed on said Whitney switch, a contention arose as to which party should bear the loss. The complaint alleges that such cotton was destroyed by fire while in the custody of the defendant, (respondent,) either as a common carrier or warehouseman, or was destroyed by fire communicated to said cotton by the acts of the authorized agents and employes of said defendant, (respondent,) and by the negligence of said last-named party. This was denied by the answer. At the trial before Judge Fraser and a jury at January term, 1892, of the circuit court for Spartanburg, at the conclusion of the plaintiff's testimony, the defendant (respondent) moved for a nonsuit, which was granted, and, after entry of judgment thereon, the plaintiff appealed therefrom.

Before setting out the grounds of appeal, it may be as well to notice the results established by the testimony. There was ample proof that the 13 bales of cotton were burned in the car belonging to the defendant (respondent) while on the track known as the "Whitney Switch." It was proved also, that this car had been placed at this point two or three days before the fire, by the defendant, (respondent,) at the request and direction of plaintiff, (appellant.) It was also proved, as a part of their arrangement, that the cars should not be guarded by the respondent, and the plaintiff (appellant) had the right, even, to break any seals placed on the doors of the car; that this arrangement was made at the request and for the convenience of the plaintiff, (appellant;) that the plaintiff (appellant) had, two days before the fire, and on the day the car with this cotton had been placed on the Whitney switch, surrendered to the defendant (respondent) the bill of lading for the cotton in this car; that, as a further part of the arrangement between these parties, the plaintiff (appellant) had the right to remove the cotton so shipped without any superintendence by the defendant...