Foard v. Atlantic & North Carolina Rail Road, 53 N.C. 235, 8 Jones 235 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 235, 8 Jones 235

O. G. FOARD v. THE ATLANTIC AND NORTH CAROLINA RAIL ROAD COMPANY.^*

Where machinery was consigned to the agent of a rail-road, to be forwarded to the plaintiff over such road, and it was negligently detained for a time, it was held that the defendants were not liable as common carriers for this neglect, but only as bailees.

Where several pieces of machinery were shipped to the defendants’ agent to be forwarded to plaintiff, and they were described in the bill of lading as “three pipes in one bundle, and two, single pipes,” and they were delivered by the ship’s agent to the defendants’ agent, who had a copy of the bill, and by some means, the direction on one of the single- pipes became illegible, and it was not forwarded, it was held that these facts were sufficient to subject the defendant for negligence as a bailee

Where a part of a machinery was consigned to defendant as plaintiff’s agent, to be forwarded to him, and defendant negligently detained it, whereby the whole machinery was kept idle, it was held that the measure of damages was not what might have been made by the machinery during the time it was idle, but the legal interest on the capital invested, the price of the hire of hands necessarily unemployed during the time, the cost of sending for the missing machinery, and all other damages that resulted, necessarily, from defendant’s negligence.

This was an action on the case, tried before Osborne, J., at Spring Term, 1860, of Rowan Superior Court.

The plaintiff, who was the owner of a steam flooring mill in the county of Rowan, declared against the defendants as •common carriers upon the custom, and for negligence as bailees, in failing to forward a piece of machinery, to wit, a large steam pipe, whereby, and in consequence of which neglect, his mill was delayed in its operations, and he, thereby deprived of its profits.

The following bill of lading was exhibited, in evidence.

“ Shipped, in good order and well conditioned, by Dibble ■& Bunce, on board the Schooner called the Howard, whereof -is master for this voyage, now lying in the port of New York, bound for New Berne, N. C., tó say:

It was proved, by one Taylor, that the Schooner Howard arrived at New Berne on the 19th of September, 1858, and he, in pursuance of general instructions given him by the agent of the rail road, put the goods on board of a dray and sent them to rail road depot, and that he, Taylor, was the known agent of the master and owners of the Schooner Howard, and resided in the town of New Berne. It was further proved that all the articles were forwarded to the plaintiff, except one of the single pipes, which was a large one, seven feet long, on which the direction had been obliterated, so that no part of it was at first legible, but that by rubing it with a rag, saturated with oil, the word “ Salisbury” could be read. The agent of the rail-road swore that the pipe in question was not forwarded, because he could not tell to whom it belonged. Mr. Eisher, the agent of the plaintiff, swore that on the 22d of September, aforesaid, he received notice from plaintiff that the pipe had not come to hand, and directions to enquire for it; that he went on the same day to the depot, and made known his instructions to the agent of the depot, who informed him that he knew nothing about it. ITe was directed to call in the morning, when another agent, the regular one, would be at home ; that he did call, and looked at the pipe in question, and saw others, but neither he nor the agent could ascertain to whom it belonged, and that no further search was made on either of these occasions. Mr. Taylor also swore, that if he had been applied to at any time after the delivery of the articles at the depot, he could have identified the one spoken of, as the property of Mr. Foard. Mr. Aldrich, Machinist, swore, that, on the 29th of October ensuing, he went to the depot of the defendants at New Berne, in search of the missing pipe, and found it lying in the depot, and knew it immediately. He said he knew the article from the number and description mentioned in the bill of lading, produced by the agent of the depot, and from his knowledge of the article wanted; that the pipe in question, was a very important part of the machinery, without which the mill could not go at all, and for the want of which, it was stopped for six weeks. lie further swore that he did not believe that such an article could be supplied, nearer than the city of New York, and that he took possession of it, and carried it to the mill immediately upon his finding it. The counsel for the defendant, asked the Court, to charge the jury, that if the missing pipe could have been supplied, it was the duty of the plaintiff' to have got another pipe, and that he was not entitled to recover for the stoppage of his business, for any longer time titan he could have sent and got another pipe. The Court declined to give the instruction, but charged the jury that the rule of damages was the nett profits of the mill which had been lost by the delay in getting the pipe. Defendant excepted.

On the trial, the question of defendants’ liability in point of law, was reserved by his Honor, with leave to set aside the verdict, in case plaintiff should get one, and enter a nonsuit. Verdict for plaintiff. Afterwards, on consideration of the question of law, His Honor, being in favor of the defendant, ordered the verdict to be set aside, and a nonsuit entered.— Plaintiff appealed to this Court. The defendant also appealed, on his exception as to the measure of damages.

Jones and Love, for plaintiff.

Boyden, for defendant.

* Judge Manly being a stockholder in the rail-road company, took no part in the decision of this case.

Battle, J.

Upon the trial, it seems to have been conceded, that the defendants were not liable as common carriers, for their neglect to .send on, in proper time, the pipe in question. It was decided in the case of Boner & Christ v. The Merchants' Steam Boat Company, 1 Jones’ Rep. 211, that 'a company, whose ordinary business was to transport goods by water for freight, was not bound, as to the time of delivery, as common carriers, but as mere bailees for hire; and we think the same rule must be applied to a company, which carries goods for freight on a rail-road. The rule of negligence, in such cases, makes the bailee bound for ordinary care, and, of course, makes him responsible for ordinary neglect. Applying this rule as a test to the facts of this case, we differ from his Hon- or in the Court below, as to the result. It is our decided opinion that the agent of the company was guilty of, at least, ordinary, if not gross neglect in forwarding the pipe to the defendant. It was, under instructions from the agent, put on a dray, together with another single pipe, and a bundle of three pipes, to be carried to the company’s depot. "When it arrived there, it was, or ought to have been, put with the other articles with which it had come, as shown by the bill of lading. If it had been so placed, the agent, who had been furnished with the bill of lading, would not have left it behind when he sent on the other articles. A man of ordinary-prudence, in the management of his own affairs, would not have permitted, while he had the bill of lading in his own hands, one pipe to be separated from the others, and would not, therefore, have neglected to send them on as he had received them, all together. Besides, when he learned that one of the articles had not been forwarded, he would have applied to the ship’s agent to assist him in finding it out, as soon as he ascertained that there was some difficulty in identifying it. Mr. Fisher, the plaintiff’s agent, had no other means of ascertaining which it was, than any other person, but Mr. Taylor, the ship’s agent, had; and he testified that, if he had been applied to, he could easily have pointed it out, so that th§ greater part of the delay might have been avoided.

Asa verdict was taken for the plaintiff, subject to the opinion of the Court, as to the legal-liability of the defendant, we might, upon reversing his Honor’s opinion as to that question, direct a judgment to be entered upon the verdict for the plaintiff, but for the objection of the defendant to his Honor’s ruling upon the question of damages. Upon that question, we also differ from his Honor. When he made the decision, we presume that the case of Boyle v. Feeder, 1 Ire. Rep. 607, was not called to his attention. That was a case where the plaintiff declared for the breach of a covenant, in which the defendant had bound himself to furnish machinery for a steam saw mill, by a stipulated time. He claimed, as damages, the estimated value of the profits, which he alleged that he might have made, if the covenant had been complied with. The Court said, through Rotkin, C. J., who delivered their opinion, that “very certainly damages are not to be measured by any such vague and indeterminate notion of anticipated and fancied profits of a business or adventure, which, like this, depends so much on skill, experience, good management and good luck, for success. That would make the defendant an insurer against losses from any cause, in a business of hazard, and even against the plaintiff’s want of management. The gains of the business the plaintiff might have clone, or probably would have done, cannot be correctly estimated; and, therefore, evidence offered with a view of estimating them, as the standard of damages, was properly excluded, as being irrelevant, and tending to mislead the jury.” The proper measure of damages, the Court said, was to give the plaintiff “ a fair rent for the time, or compensation for the capital invested and lying idle.” This rule, we think, will apply to the present case, and being one which we find to have been adopted by this Court, after full consideration, we feel no inclination to disturb it. In our opinion, then, the plaintiff will be entitled to recover from the defendant, op another trial, a compensation for his capital invested, while it was lying idle for the want of the pipe not forwarded in proper time, that is, the legal interest on such capital, also for any workmen or hands necessarily unemployed for the same cause, and also for the expenses of sending the machinist after the missing pipe; besides any other damages, which were the direct and necessary result of the defendant’s negligence.

The effect of the error, committed by his Honor, in respect to the question of damages is, that the judgment must be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed, and a venire de novo.