Tuthill v. Norfolk Southern Railroad

93 S.E. 446, 174 N.C. 77, 1917 N.C. LEXIS 25

• Court: Supreme Court of North Carolina
• Decided: September 19, 1917
• Status: Published

Opinion

Hoke, J.

In Harris v. R. R., 173 N. C., 110 a recovery was sustained for loss of goods at this same time and place. In that case both sides offered testimony, and the court was of opinion that there were facts in evidence permittiüg the inference that the negligence of the company had concurred in causing the loss, a fact that may import liability, though an act of God may also be a contributory cause. Ferebee v. R. R., 163 N. C., 351.

In the present case, the defendant, admitting that the goods were lost while held by the company as common carriers in its warehouse at Washington, N. 0., offered evidence tending to show that both goods and warehouse were destroyed and lost by reason of a wind and rainstorm of such unusual violence and proportions that it amounted to “an act of God” within the meaning of the principle which may relieve carriers of liability in such cases that tbe loss was due solely to such act of God, and that the negligence of the defendant in no way contributed. We find nothing to controvert this testimony in the present record, and if these facts are accepted by the jury, we concur in his Honor’s view that no liability should attach; and that he did right in setting the. verdict aside. Having done this as a matter of law, our decisions hold that the order is appealable. Shives v. Cotton Mills, 151 N. C., 290; Oil Co. v. Grocery Co., 136 N. C., 354; Revisal 1905, sec. 554.

This will be certified that a new trial be had of the issues. The appellant will be taxed with the costs of this appeal.

Affirmed.