Lovelace v. Atlantic Coast Line Railroad

89 S.E. 797, 172 N.C. 12, 1916 N.C. LEXIS 217

• Court: Supreme Court of North Carolina
• Decided: September 13, 1916
• Status: Published

Opinion

AlleN, J.

Two exceptions are discussed in the brief of the appellant, and under the rules of the Supreme Court all others are abandoned.

The first is to the refusal of his Honor to permit the defendant to prove that after the tobacco was injured by the water several shippers of tobacco told the agent of the defendant there was nothing for him to do but to ship the tobacco.

This evidence was incompetent, because it had no tendency to relieve the defendant from liability, as the loss had already occurred, and there is no allegation or contention of the plaintiff of negligence on the part of the defendant in shipping the tobacco except that it was unreasonably delayed.

The evidence is also objectionable as hearsay. If the defendant wished to prove that it shipped the tobacco as soon as it reasonably could, after it was injured by the water, and that this was a prudent course to pursue, it ought to have introduced the sellers of tobacco, and not what they had said about it.

The second exception is upon the ground that the court charged the jury that if the tobacco was delivered to the defendant in time to have been shipped on the 2d, then the defendant would be liable.

Hpon an examination of the charge we do not find any such instruction.

His Honor did state to tbe jury, as a contention of tbe plaintiff, tbat tbe tobacco was delivered to tbe defendant on 2 September, in time for it to have been reasonably shipped on tbat day.

If tbe defendant desired other and more specific instructions, it was its duty to present requests for instructions.

We find

No error.