Kime v. Southern Railway Co.

72 S.E. 485, 156 N.C. 451, 1911 N.C. LEXIS 202

• Court: Supreme Court of North Carolina
• Decided: November 1, 1911
• Status: Published

Opinion

Alleh, J.

Tbe ruling of tbe learned judge, before wbom tbis case was tried, granting tbe motion of tbe defendant for judgment upon tbe verdict, is based upon tbe answer to tbe third issue, be being of opinion tbat tbe failure of tbe plaintiff to give notice to defendant of tbe injury to tbe stock is fatal to bis right of action.

He correctly held, in accordance witb our authorities, tbat tbe provision in tbe bill of lading requiring notice was valid, and tbat tbe failure to give written notice would not prevent a recovery by tbe plaintiff, if tbe agent of tbe defendant knew of tbe injury to tbe borses and mules at tbe time they were being unloaded. Selby v. R. R., 113 N. C., 588; Jones v. R. R., 148 N. C., 586; Austin v. R. R., 151 N. C., 137; Kime v. R. R., 153 N. C., 400.

He was, however, further of opinion, and so charged tbe jury, tbat there was no evidence “tbat tbe agent of tbe defendant saw or knew tbat it (tbe stock) was injured,” and directed tbe jury to answer tbe third issue “No,” if tbe evidence of tbe witness for tbe plaintiff was believed; and in tbis, we think, there was error.

The plaintiff was a witness in bis own behalf,, and testified that he was present when the stock was unloaded at Burlington, and that Mr. Ray, the depot agent, was also present; that the horses and mules were in a suffocated condition, and that the perspiration was on them like they had come out of a river; that they were out of breath and very weak, and that the boys who were helping to unload had to take them by the tails and hips and steady them; that they did not lead them as was usually done, but had to steady them and lead them down the gangway to keep them from falling; that Mr. Ray, the agent, was standing on the platform when they were moved away.

He was then asked the following questions:

Q. Was he in a position to see the horses? A. Yes, sir; good as I could.

Q. How close were the horses to Mr. Ray? A. They -had to come right by the side of him.

Q. How many feet ? A. Something like six or eight feet.

Q. That was when they came out? A. Yes, sir.

If this evidence is believed, the condition of the stock was such that it would necessarily attract attention, and the agent was so situated that he could scarcely fail to observe them.

In our opinion, this is some evidence that he saw the horses and mules, and knew they were injured.

The question is also raised on the record as to the effect of the valuation clause in the bill of lading, but as this is considered in another case at this term, and the facts bearing on this controversy may be more fully developed on another trial, we refrain from discussing it.

For the error pointed out, a new trial is ordered.

New trial.