The motion for judgment of nonsuit is upon two grounds:
1. That as the shipment was not totally destroyed and worthless, it was the duty of the plaintiff to receive the goods, and as he refused to do so, he cannot maintain this action to recover damages.
*5032. That tbe cause of action alleged in tbe complaint' is not to recover tbe damages to tbe goods, but tbeir value, and as sucb cannot be-maintained, because tbe goods were not worthless and tbe plaintiff refused to receive them.
Tbe principle for wbicb tbe defendant contends is sound, and is thus stated in 3 Hutchison on Carriers, see. 1365: “As a general rule, tbe doctrine that where goods are injured tbe owner may abandon them as for a total loss, and sue for tbeir value, does not apply to contracts of affreightment. Tbe fact, therefore, that tbe goods were injured upon tbe journey through causes for wbicb tbe carrier is responsible, does not of itself justify tbe consignee in refusing †0' receive them, but be must accept them and bold tbe carrier responsible for tbe injury”; and in Wilkins v. R. R., 160 N. C., 58, wbicb was a case of total loss: “In contracts of affreightment tbe consignee under an ordinary bill of lading may not, as a general rule, reject tbe goods because "tbe same have been wrongfully damaged in tbe course of shipment. Under usual conditions be must receive tbe goods and bold tbe company for tbe injury done; and be is required further to do what good business prudence would dictate in tbe endeavor to minimize tbe loss. Tbe principle, however, does not obtain when tbe ‘entire value of tbe goods has been destroyed and tbe injury amounts practically to a total loss.’ In sucb case tbe consignee is justified in refusing tbe goods, and may sue for tbe entire amount.”
Note, however, that when tbe loss is partial tbe doctrine is that tbe owner cannot reject tbe goods and recover tbe value-, and not that be cannot recover tbe damages actually sustained; and this distinction is found in all tbe authorities.
In tbe case from Texas, cited by tbe defendant, tbe Court says: “Where a shipment of goods was only partially destroyed by tbe carrier’s negligence, neither tbe consignee nor tbe shipper is justified in abandoning tbe shipment and charging tbe carrier with its full value.” R. R. v. Elevator Co., Texas (Tex. Civ. App.), 168 S. W., 1028. And in tbe case from South Carolina: “A carrier having goods in possession for transportation acquires no title to them, as tbe goods remain tbe property of the owner, Ilis right of action against tbe carrier is for tbe entire value of tbe goods if lost, or made entirely worthless by tbe carrier’s default; and in case of destruction of value, tbe recovery is not affected by tbe owner’s acceptance or bis refusal to accept the goods. On tbe other band, if tbe value is merely impaired by actual injury in tbe bands of tbe carrier, or by delay in tbe carrier, tbe consignee is bound to receive tbe goods, and bis right of action is limited to tbe impairment of value due to tbe delay in. carriage or injury to tbe goods.” McGrath v. R. R., 91 S. C., 552.
*504In Parsons v. Express Co., 25 L. R. A. (N. S.), 843, the plaintiff refused to receive tbe shipment, and sued to recover tbe value, and tbe Court held tbat tbe “Defendant was entitled to bave tbe case submitted upon a proper theory, and tbe verdict of a jury upon the amount of plaintiff’s damage, which was the difference between tbe value when delivered to tbe express company for shipment and its value when finally tendered to plaintiff at its destination,” and R. R. v. Cumbie, 141 S. W., 939; R. R. v. Everett, 37 Tex. Civ. App., 167; and R. R. v. Moore, 47 Tex. Civ. App., 531, are to tbe same effect.
This is tbe rule applied by bis Honor, as be instructed tbe jury tbat tbe measure of damage was “Tbe difference between tbe value, reasonable market value, of tbe shipment at tbe time it reached Kernersville, in tbe condition it then was, and what would bave been a reasonably fair value of tbat same shipment at Kernersville at tbe same time, but for tbe damage suffered .by it or sustained to it, owing to tbe negligence of tbe defendant. You would take and apply tbe rule this way: You would say, "What would bave been our finding as to a fair valuation of tbat shipment if it bad come from Macon to Kernersville in as good plight and condition as it was shipped? And then you would ask tbe second question, What is tbe depreciation, bow much was tbat machinery lessened in value when it came to Kernersville, on account of tbe negligent failure of tbe defendant to transport it safely? And tbat difference would be tbe measure of damages.”
This rule is not only supported by authority, but seems to be reasonable and just, and it imposes no additional burden on tbe carrier.
If tbe plaintiff bad received tbe shipment be would bave been entitled to recover as damages tbe difference between tbe value óf goods in their damaged condition and their value if they bad not been damaged, which is all be has recovered, and we see no reason for denying this recovery because of refusal to receive tbe shipment, when this has in no way increased the liability of tbe defendant.
We are also of opinion that the complaint alleges a cause of action, which is sustained by tbe verdict.
It alleges tbat tbe defendant received tbe shipment, tbat it was damaged during transportation by tbe negligence of tbe defendant, and tbat tbe plaintiff has suffered damages in tbe sum of $3,000 by reason of tbe failure of tbe defendant to properly and safely haul, transport, and deliver tbe machinery and supplies aforesaid, and in carelessly and negligently breaking, damaging, and destroying said machinery and supplies while tbe same was being carried and transported as aforesaid.
Tbe evidence introduced to prove tbat the plaintiff, who was tbe consignor in tbe bill of lading, was tbe owner of tbe goods, was com*505petent. Summers v. R. R., 138 N. C., 295; Rollins v. R. R., 146 N. C., 153; Cardwell v. R. R., 146 N. C., 218.
Tbe evidence of a contract for tbe sale of tbe goods by tbe plaintiff was withdrawn from tbe jury.
No error.