Coppersmith v. Norfolk Southern Railroad

"WaleeR, J. We do not see any objection to tbe charge of tbe court as to tbe right of tbe plaintiff to recover tbe value of tbe chains not delivered by tbe defendant, though there does appear to be exceptions to rulings upon some questions of evidence, which it is not necessary to state more definitely and consider, as they may not occur at tbe next trial, and it is not necessary to do so, for there is a serious error as to tbe measure of damages, for which a new trial will be granted, which will cover tbe entire case as submitted to tbe jury, there being but one issue, and one answer, and one indivisible amount awarded for all damages, thereby covering both questions in tbe case. There was substantial error in tbe instruction as to tbe consequential damages, tbat is, those arising by reason of tbe additional amount paid by tbe plaintiff on bis contract for piling and rafting. There was nothing in tbe case to show tbat tbe defendant bad been notified tbat plaintiff bad a contract for piling and rafting witb another, which would require tbe immediate, or even early, use of tbe chains. They were sent to bim by Reynolds & Bros, for a particular purpose, which was not disclosed to tbe defendant at tbe time of tbe shipment, nor do we think there was anything in tbe circumstances, or tbe nature of tbe goods, to put them on notice of tbe plaintiff’s contract witb another for piling and rafting. But if there bad been evidence tbat defendant knew, or should have known, tbat its negligent failure to ship and deliver tbe chains in due time to tbe plaintiff would cause tbe damage now claimed, tbe court should have submitted tbe question to tbe jury, so tbat they could find tbe facts, and not decide tbe question of liability for them *29 upon tbe mere evidence that tbe plaintiff, was compelled to pay tbe additional amount. It was not solely a question of law, but one of fact and law. And, besides, there was nothing in tbe nature of tbe shipment, tbe character or name of tbe consignee, tbe manner of shipment or tbe destination, from which tbe law would impute notice to tbe defendant that tbe plaintiff was at that time engaged in logging operations, which required tbe immediate use of tbe material, or that any special damages would be suffered. It was as reasonable to infer that tbe chains bad already been used and were being returned to tbe plaintiff as that they were to be used for tbe benefit of Eeynolds Bros, in rafting logs. The case falls within the principle stated by us in Development Co. v. R. R., 147 N. C., 503, where it is said, at pp. 507 and 508: “Damages of tbe kind claimed in this action, i. e., consequential damages, are only recoverable when they are tbe natural and probable consequence of tbe carrier’s default. Hale on Damages, 256. And ordinarily such damages are only considered natural and probable when they may be reasonably supposed to have been in contemplation of tbe parties at tbe time tbe contract was made. Wood’s Mayne on Damages, 18.” And again, if tbe plaintiff seeks to recover more than is allowable under tbe general rule as to shipments of goods and failure of tbe carrier to deliver, that is, “other and additional damages by reason of special circumstances, a knowledge of these circumstances must be brought home to tbe otiier party.” It was held in Tillinghast v. Cotton Mills, 143 N. C., 274, that “If tbe plaintiff seeks to recover different and additional damages arising by reason of special circumstances, be is required to show that defendant bad knowledge of these circumstances and of a kind from which it could be .fairly and reasonably inferred that tbe parties contemplated that they should be considered as affecting tbe question of damages.” Matthews v. Express Co., 138 Mass., 55; Railway v. Ragsdale, 46 Miss., 458; Horne v. Railroad, L. R. C., pp. 71, 72, and 583. See, also, Mfg. Co. v. R. R., 149 N. C., 261; Lee v. R. R., 136 N. C., 533; C. R. I. & P. Railroad Co. v. Newhouse Mill & L. Co., 119 S. W., 646; Ill. Cent. Railroad Co. v. Canning Co., 116 S. W., 755; Williams v. A. C. L. Rwy. Co., 56 Fla., 735, which cases seem to be very much in point. There was no evidence in this case that if tbe chains' were not delivered the'plaintiff would be put to extra expense in performing bis contract with some other party, nor was tbe character of that contract disclosed beforehand to defendant. Tbe case is not governed by tbe authorities cited by the plaintiff. It does not present tbe same kind of facts. It may be that tbe plaintiff may hereafter supply tbe testimony which is now lacking. *30 While we send the case bach for another trial, it may be proper to state that there now appears to be some evidence, if accepted as true, by which the plaintiff >may show such an interest in the chains as will enable him to maintain this action and recover some damages for the negligence of the carrier if finally established. New trial.