Pate v. Greenville & Roanoke Railroad, 35 N.C. 325, 13 Ired. 325 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 325, 13 Ired. 325

RICHARD H. PATE vs. THE GREENVILLE AND ROANOKE RAILROAD COMPANY.

"When a person undertakes to load a boat-with goods, and by his negligence the goods are suffered to fall, so as to injure the boat, ho is liable for the damages to the owner of the boat.

But where such person did not act as agent of the defendant’s iu loading the boat, but the loading was undertaken and conducted by another person^ the owner of the goods, the defendants are not liable.

Appeal from the Superior Court of Law of Northampton County, at the Fall Term 1851, his Honor Judge Dicxpre siding.

This was an action of assumpsit, brought by the plaintiff tagainst the defendants, for an injury done to the plaintiff’s boat, and after the whole case had been submitted to the jury, the Judge, being of opinion that the plaintiff was not entitled to recover upon the evidence, so declared, and thereupon the plaintiff submitted to a nonsuit, and appealed.

The sole evidence was that of one witness, John W.Pugh. I-Te deposed, that the Rail Road of the defendants terminated at Gaston, where the defendants had a large ware-house, in which goods brought on the Rail Road to Gaston were deposited — that he, the witness, was a commission merchant and forwarding agent, and resided at Gaston and had resided there about twelve years — thar, in November. 1849, certain goods from the town of Petersburg were brought by the defendants on their road to Gaston, and deposited in their ware house — that the said goods were marked and directed to persons residing on the River above Gaston, and were consigned to the witness as the forwarding agent of the .owners — that he, the witness, employed the manager of the plaintiff’s boat to convey the goods from Gaston up the-River to the owners, and directed the boatman to come to the wharf and take the goods on board of his boat — that the-ware-house of the defendants was situated on the river bank, and a wide platform,, connected with the ware-house, extended over the water, at,a considerable height above the water •and. was supported by a plank wall, which rose out of the water and came up to-theedge-of the platform — that on this platform were erected certain fixtures of iron, to- which was attached a crane, and that there was a sling of rope, to the ends of which were fastened iron-hoopsinto which sling the goods were put, by passing the-rope around the goods- — that the hooks were then attached to- the crane, and the crane was then slung round} so as-to move the goods-beyond the edge of the platform, over the water — that the goods were then lowered by the- working of the iron machinery into the boat underneath. The witness further deposed;, that he’ went into the- ware-house of the defendants, and weighed the goods, which had been- consigned to him as aforesaid, and ordered the slaves- of the-defendants to-remove the goods from the-ware-house to the platform and let them down into the plaintiff’s boat by the crane and- sling — that the goods consisted- of heavy barrels, &c., weighing- in all about thirteen hundred, pounds — that-the slaves were in the process of loading, the sling and lowering it on the platform, while-the-witness was in the-house-about fifteen feet, from them, and w.here-he could) seethe operation of the hands — that the-iron part of- the-machinery was-defective, and the rope- was-too weak and was-unsafe, though heavier freight had been, let down, with it — that-the crane-was turned offiin too much., hurry by the hands — that, because of the haste-and¡thebad< working: of the machinery,.the sling was turned off with a sudden fall, the-rope broke and-the barrels fell, on the boat and destroyed it. The witness-also stated,.that there was-a, stronger, and, sufficient r.oge,.lying on the platform, which. might have been used,, but was not — that the fixtures aforesaid were the property of the defendants, and were kept up by them to raise produce from boats to be-carried on the road, and to lower goods,, brought on the road into the boats on the river- The witness further stated,, that the defendants always had slaves as hands- about the Depot, to assist in raising produce from the boats and letting it down into-the boat,, and on. this occasion, the witness- employed the-slaves- of the defendants, but the defendants sever made’any charge or received any compensation from him for the use of the machinery or the hands, in weighing goods consigned to him oir letting: them down into the'boats — that he-took the goods-out of the-ware-house, weighed them, and ordered the si owes of the defendants to let them down into-the boat, without the knowledge or consent of the defendants’ agent upon that occasion,, but for years he had been in the habit of taking goods consigned to him out of the defendants’ ware-house,, weighing, them on- the defendants’’ scales-, and lowering them, into-boats, with the aid of the-defendants’" slaves and machinery, without any objection-on the part of the-defendants or their agent.. The-witness further stated, that the- boat-men could not see the sling before it was turned oil the platform, and it was usual for the-hands- on the- platform to give-notice to> the boatmen, before the-sling was turned off, but it was not done on this-occasion. The-witness- further stated,, that when goods-consigned to him were deposited in boats,.he-took, a receipt from, the boatmen, and then, ga-ve a- receipt- to the defendants-for the goods — that he had given no--receipt to the defendants- for these goods. The witness- further stated, that some time since; a hogshead of tobacco-got injured, in raising it from a boat, and-the President of the company, being present,, said that, for any deficiency in the ware-house, the-company was liable.

Moore for the plaiutiff.

Bragg for the defendants.

Ruffin, C. J.

It was argued for the plaintiff, that either as carrier, or ware-house man, the defendant was bound to deliver the goods on board the boat, to be taken up the river to the owners. P>ut that point is not material to the present controversy; which is for an injury to the plaintiff’s boat, from unskilfulness, and negligence in loading. Suppose the defendant to be thus bound. Yet, that would be to the owner, only; and on request, and, for a refusal, the plaintiff" could have no action, although damage might be done to his boat, in taking in the load, under the direction of some one else. The question is, who is the author of the injury sustained by the plaintiff? Whether bound, or not, to deliver the goods to the owner on board of the boat, if the defendant had undertaken to load the boat, and by the negligent use of an indifferent rope, the goods fell, and did the damage, the plaintiff might have had an action. But, in point of fact, the defendant did not undertake it. There was no request to the defendant’s officers to do so; but, on the contrary, the owner of the goods, or, which is the same, the consignee, selected the goods, and took them under his own charge in the warehouse, and, taking the slaves about the establishment, he made them do the work, under his own direction. He did not act as the agent of the defendant, it is clear. For he had received no authority as agent; and, certainly, if the goods had received damage from falling into the water» he could have had no redress against the company for his own want of skill or care, about his own goods; nor can the present plaintiff. It would be peculiarly hard, if he could; as a sufficient rope was provided, and on the spot, by which the goods might have been let down safely, had the witness seen fit to use it. The time when the witness usually took, and gave receipts for the goods, makes no difference; the substance is, whether he accepted the goods; and took them into his own care, and disposition, and not whether he gave a receipt for them.

Per Curiam. Judgment affirmed.