Tuthill v. Atlantic Coast Line Railroad, 172 N.C. 831 (1916)

Sept. 13, 1916 · Supreme Court of North Carolina

172 N.C. 831

LUTHER B. TUTHILL v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 13 September, 1916.)

Carriers of Goods — Trials—Instructions—Evidence—Nonsuit—Appeal and Error.

In this action to recover of a railroad company damages to a shipment of shoes while in the carrier’s possession, and caused by a storm-tide, the sufficiency of the evidence to establish the defendant’s liability for failure to recover the shoes does not arise on defendant’s appeal, it not having made a motion to nonsxiit or requested special instructions thereon.

ActxoN tried at May Term, 1916, of Beautoet, before Allen, J., upon these issues:

1. Was the property of the plaintiff injured by the negligence of the defendant? Answer: “Yes.”

2. If so, what damages is plaintiff entitled to recover? Answer: “$150.”

From the judgment rendered, defendant appealed.

Ward & Grimes for plaintiff.

Small, MacLean, Bragaw & Rodman for defendant.

Pee Cukiam.

This action is brought to recover damages to a, shipment of shoes injured while in the defendant’s possession by a storm-tide at Washington, N. C., 2 September, 1913. Upon arrival at said point the shoes were loaded in a box car and moved down to the river, where they were subsequently injured by the storm-tide.

Upon the trial the defendant made no motion to nonsuit and submitted no requests for special instructions to the jury. Therefore, the sufficiency of the evidence to establish the liability of the defendant for failure to remove the shoes in time to avoid injury is not before us.

There are no exceptions to the evidence and the three assignments of error are directed to certain propositions of law contained in the charge, which we think are substantially correct.

Upon the record the judgment is

Affirmed.