Ashe, J.
We cannot concur in the conclusion of law to which the court came, upon the facts found.
The action is brought upon a penal statute, which is always to be construed strictly in favor of those who are charged with violating its provisions. The rigid rules therefore, of the common law with reference to the liability of common carriers, should not be applied to a case involving the violation of a penal statute.
In Branch v. R. R. Co., 77 N. C., 347, which like this was an action to recover the penalty given by the act of 1374-’75, it was very clearly intimated, that the excuse of inability to provide cars sufficient to transport the freight delivered to the company, in consequence of the accumulation of freight, would have availed the defendant as a defence to the action, if it had not caused the accumulation by a competition with other roads for through freight.
In Keeter v. R. R. Co., 86 N. C., 346, which has been referred to as authority for the position that no excuse is admissible to exempt a railroad company from the penalty, when it violated the letter of the statute, it may be well to observe .that this court did not enter fully into the discussion of that question ; for it was not necessary to do so, as the case turned upon the point, that the delay with which the defendant was charged, had not continued beyond five full running days. Branch’s case was cited as authority for that position, and the case went off upon that [261]*261point. The other point, as to the excuse; did not engage the special attention of the court, as its consideration was not necessary to the decision of the case; and the court could not have intended to hold that there could be no excuse, when it was citing Branch’s case with approval, in which it is conceded that excuses may be admitted.
The question then is, has the defendant incurred the penalty, or are the excuses given by it sufficient to exonerate it from liability?’
The statement of the case discloses the following facts:
That there was a considerable accumulation of freight along the line of defendant’s road during the months of October and November, caused by an increase in the crop, but not by any competition of the defendant for through freight.
That it had been shipping cotton on flat-cars over the Seaboard road for ten years previous to October, 1881, and had 120 cars, each with capacity to carry forty bales of cotton, which were sufficient to transport all the freight that came to it, either as through or local freight, with promptness and dispatch. But sometime in September, 1881, the Seaboard road notified the defendant that it would not transfer over its road flat-cars, belonging to the defendant, loaded with bales of cotton ; and after that, box-cars in place of these excluded cars, could not have been procured before the 2d day of November, when the cotton was delivered by the plaintiffs for shipment. 'After the exclu‘sion of its flat-cars from the Seaboard road, the defendant was put under the necessity of running through to Portsmouth its box-cars to carry freight through, and but for that, could have transported all the freight delivered.
That the delay in-shipping the plaintiffs’ cotton was caused by the increase in freight, the refusal of the Seaboard road to admit the-defendant’s flat-cars on it, loaded with [262]*262cotton, the detention of its box-cars at Portsmouth, and its inability to procure other cars in time for this shipment.
And for these causes of delay, it does not appear that the defendant was in any way responsible. It could not have prevented the increase in freight, nor the unexpected action of the Seaboard road in reference to its flat-cars, and it seems, it did all in its power to prevent the detention of its cars at Portsmouth. It employed the services of a “car-tracer,” and used' the wires almost daily to get its cars returned from Portsmouth.
It is true, if the defendant’s box-cars had not been used to carry the freight through to Portsmouth, the plaintiffs’ cotton and all other freight could have been moved without delay. But a through bill' of lading is advantageous to both parties — to the defendant, by saving it the trouble and expense of breaking bulk at Weldon, and to the plaintiffs, by giving them lower rates of transportation, and this is probably the reason they applied for and received a bill of lading for through freight to Norfolk ; and after doing so, it will not do for them to say, if their cotton had been shipped only to Weldon and the defendant’s box cars had not been used to carry cotton to Portsmouth, the delay would not have occurred.
The delay in making the shipment then, it seems, has not been caused by any act of negligence or default on the part of the defendant, but resulted from .the concurrence of circumstances entirely beyond its control. And if a common carrier can be exonerated in any case from the penalty given by the statute, we think this is one of the cases where it should be excused. When the facts as found in this case show that, by force of circumstances for which it was in no way responsible, it was disabled from performing the duty imposed by the statute, it would be unjust to punish it for failing to comply with its requirements.
Every common carrier who receives goods for transporta[263]*263tion is bound to ship them within a reasonable time, and when the common law imposed that duty, and the legislature defines what is reasonable time, and subjects to a penalty the failure to comply with its requirements* unless otherwise agreed between the railroad and the shipper, the burden is on the railroad company to show the agreement relied upon in its exoneration. The defendant here says there was such an agreement between the railroad and the plaintiffs, and points to the restriction in the bill of lading given the plaintiffs, which is,.that the cotton of plaintiffs is received for transportation at company’s convenience.
That a railroad may restrict its common law liability, except for its own or its servants’ negligence, is now generally admitted to be law. Redf. on Railways, 99, and the authorities there referred to; Capehart v. R. R. Co., 81 N. C., 438, and cases there cited.
But to avail the defendant, the restriction must be brought to the knowledge of the shipper; and it is held that a restriction in a bill of lading given to the shipper at the time of the delivery of the goods, and received by him without remonstrance or objection, is evidence of an assent to the restriction, and is equivalent to an express agreement. Burgess v. Townsend, 37 Ala., 247; Belger v. Ginsmore, 54 N. Y., 166.
The plaintiffs however say they did notread the terms of the shipment until a few days before the action was commenced, but they could read, and the condition is in full print upon the face of the bill of lading, and it was their own fault they did not read it. We think it affected them with legal notice. McMillan v. R. R. Co., 16 Mich., 79.
There was here then an agreement between the plaintiffs and the defendant company to ship the plaintiffs’ cotton at its convenience, and the question resolves itself into the inquiry whether the restriction or agreement was reasonable.
Except under circumstances like those disclosed in the [264]*264case, we should unir.
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Ashe, J.
We cannot concur in the conclusion of law to which the court came, upon the facts found.
The action is brought upon a penal statute, which is always to be construed strictly in favor of those who are charged with violating its provisions. The rigid rules therefore, of the common law with reference to the liability of common carriers, should not be applied to a case involving the violation of a penal statute.
In Branch v. R. R. Co., 77 N. C., 347, which like this was an action to recover the penalty given by the act of 1374-’75, it was very clearly intimated, that the excuse of inability to provide cars sufficient to transport the freight delivered to the company, in consequence of the accumulation of freight, would have availed the defendant as a defence to the action, if it had not caused the accumulation by a competition with other roads for through freight.
In Keeter v. R. R. Co., 86 N. C., 346, which has been referred to as authority for the position that no excuse is admissible to exempt a railroad company from the penalty, when it violated the letter of the statute, it may be well to observe .that this court did not enter fully into the discussion of that question ; for it was not necessary to do so, as the case turned upon the point, that the delay with which the defendant was charged, had not continued beyond five full running days. Branch’s case was cited as authority for that position, and the case went off upon that [261]*261point. The other point, as to the excuse; did not engage the special attention of the court, as its consideration was not necessary to the decision of the case; and the court could not have intended to hold that there could be no excuse, when it was citing Branch’s case with approval, in which it is conceded that excuses may be admitted.
The question then is, has the defendant incurred the penalty, or are the excuses given by it sufficient to exonerate it from liability?’
The statement of the case discloses the following facts:
That there was a considerable accumulation of freight along the line of defendant’s road during the months of October and November, caused by an increase in the crop, but not by any competition of the defendant for through freight.
That it had been shipping cotton on flat-cars over the Seaboard road for ten years previous to October, 1881, and had 120 cars, each with capacity to carry forty bales of cotton, which were sufficient to transport all the freight that came to it, either as through or local freight, with promptness and dispatch. But sometime in September, 1881, the Seaboard road notified the defendant that it would not transfer over its road flat-cars, belonging to the defendant, loaded with bales of cotton ; and after that, box-cars in place of these excluded cars, could not have been procured before the 2d day of November, when the cotton was delivered by the plaintiffs for shipment. 'After the exclu‘sion of its flat-cars from the Seaboard road, the defendant was put under the necessity of running through to Portsmouth its box-cars to carry freight through, and but for that, could have transported all the freight delivered.
That the delay in-shipping the plaintiffs’ cotton was caused by the increase in freight, the refusal of the Seaboard road to admit the-defendant’s flat-cars on it, loaded with [262]*262cotton, the detention of its box-cars at Portsmouth, and its inability to procure other cars in time for this shipment.
And for these causes of delay, it does not appear that the defendant was in any way responsible. It could not have prevented the increase in freight, nor the unexpected action of the Seaboard road in reference to its flat-cars, and it seems, it did all in its power to prevent the detention of its cars at Portsmouth. It employed the services of a “car-tracer,” and used' the wires almost daily to get its cars returned from Portsmouth.
It is true, if the defendant’s box-cars had not been used to carry the freight through to Portsmouth, the plaintiffs’ cotton and all other freight could have been moved without delay. But a through bill' of lading is advantageous to both parties — to the defendant, by saving it the trouble and expense of breaking bulk at Weldon, and to the plaintiffs, by giving them lower rates of transportation, and this is probably the reason they applied for and received a bill of lading for through freight to Norfolk ; and after doing so, it will not do for them to say, if their cotton had been shipped only to Weldon and the defendant’s box cars had not been used to carry cotton to Portsmouth, the delay would not have occurred.
The delay in making the shipment then, it seems, has not been caused by any act of negligence or default on the part of the defendant, but resulted from .the concurrence of circumstances entirely beyond its control. And if a common carrier can be exonerated in any case from the penalty given by the statute, we think this is one of the cases where it should be excused. When the facts as found in this case show that, by force of circumstances for which it was in no way responsible, it was disabled from performing the duty imposed by the statute, it would be unjust to punish it for failing to comply with its requirements.
Every common carrier who receives goods for transporta[263]*263tion is bound to ship them within a reasonable time, and when the common law imposed that duty, and the legislature defines what is reasonable time, and subjects to a penalty the failure to comply with its requirements* unless otherwise agreed between the railroad and the shipper, the burden is on the railroad company to show the agreement relied upon in its exoneration. The defendant here says there was such an agreement between the railroad and the plaintiffs, and points to the restriction in the bill of lading given the plaintiffs, which is,.that the cotton of plaintiffs is received for transportation at company’s convenience.
That a railroad may restrict its common law liability, except for its own or its servants’ negligence, is now generally admitted to be law. Redf. on Railways, 99, and the authorities there referred to; Capehart v. R. R. Co., 81 N. C., 438, and cases there cited.
But to avail the defendant, the restriction must be brought to the knowledge of the shipper; and it is held that a restriction in a bill of lading given to the shipper at the time of the delivery of the goods, and received by him without remonstrance or objection, is evidence of an assent to the restriction, and is equivalent to an express agreement. Burgess v. Townsend, 37 Ala., 247; Belger v. Ginsmore, 54 N. Y., 166.
The plaintiffs however say they did notread the terms of the shipment until a few days before the action was commenced, but they could read, and the condition is in full print upon the face of the bill of lading, and it was their own fault they did not read it. We think it affected them with legal notice. McMillan v. R. R. Co., 16 Mich., 79.
There was here then an agreement between the plaintiffs and the defendant company to ship the plaintiffs’ cotton at its convenience, and the question resolves itself into the inquiry whether the restriction or agreement was reasonable.
Except under circumstances like those disclosed in the [264]*264case, we should unir. sitatingly hold that it was not a reasonable restriction upon defendant’s liability. When it is its duty to ship in a reasonable time, and the law limits the -time to five days, a stipulation to ship at convenience is too indefinite, and therefore unreasonable. But under the extraordinary combination of adverse circumstances developed in this case, over which the defendant had no control, nor power, nor means to prevent or foresee, we must conclude that the condition was not so unreasonable as to prevent the defendant from setting it up as a defense, in an action for the penalty prescribed by the statute.
The view we have taken thus far, disposes of the first four points of law raised by the defendant in the court below.
But the defendant also insisted that the act of 1874-75 is in violation of the constitution, and in contravention of its charter. Both of these questions are definitely settled adversely to the defendant’s position, by the decision in Branch’s case, supra.
The defendant further contended that said act affected inter-state commerce, and was therefore void. But this question has been as satisfactorily settled as those just mentioned. The supreme court of the -United States has recently decided that railroads as common carriers exercise a sort of public office, and have duties to perform in which the public is interested; and that being so, they are subject to such regulations as may be established by the proper authorities for the common good. And where a railroad is situated within the limits of a single state, its business is carried on there; and its regulation being a mat,ter of domestic concern, if it is employed in state as well as interstate commerce, unless congress acts,' the state must'be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its territory, though in doing so, it may indirectly [265]*265operate upon commerce outside its immediate jurisdiction. Munn v. Illinois, 4 Otto (U. S. Rep.) 113; Chicago, &c., v. Iowa, Ib., 155.
In view of the special circumstances of this case, our conclusion is that the defendant is exonerated from, liability to the penalty, and that there is error in the judgment of the superior court, which is therefore reversed, and judgment must be entered here for the defendant.