Shelby Ice & Fuel Co. v. Southern Railway Co.

60 S.E. 723, 147 N.C. 61, 1908 N.C. LEXIS 13

Opinion

"Walkee, J.

This is an action to recover the penalty given by section 2632 of the Revisal for delay in transporting a carload of brick from Grover, N. C., to Shelby, N. C., via Blacksburg, S. C. The issue submitted to the jury, with the answer thereto, was as follows: “What amount is the plaintiff entitled to recover of the defendant on account of penalty ?” Answer: “Fifty-five dollars.” The court charged the jury that, if they believed the evidence, they should answer the issue “Forty-five dollars.” This is an interstate shipment, as we have held in Davis v. Railway, 145 N. C., 207, and Ice Co. v. Railway, at this term, and, therefore, tbe case is governed by Marble Co. v. Railway, also decided at this term, wherein we held that section 2632, so far as the actual transit is concerned, applies only to intrastate shipments. The charge was, therefore, erroneous for this reason, and also because the Judge should have permitted the jury to pass upon the question of delay and to ascertain the amount of the recovery, under proper instructions, instead of directing a verdict for the plaintiff as matter of law, if the evidence was believed. Davis v. Railway, supra, and Ice Co. v. Railway, supra.

New Trial.