Bell v. Norfolk Southern Railroad

BeowN, J., after stating the case: The defendants assign thirteen errors, but these present only three questions: 1. Is the defendant the Norfolk Southern Eailroad Company liable for the tort of the receivers? *184 2. Was it the duty of the.defendants to furnish the cars on a verbal demand? 3. Are the defendants liable for not furnishing cars for. the shipment of the piling not actually placed on defendant’s right of way? We are of opinion that each of these questions must be answered in the affirmative. The first question is disposed of by our decision in Lassiter v. R. R., ante, 19. In addition to what is so well said by the Chief Justice in Lassiters case, we think a fair interpretation of the decree of the Circuit Court of the United States is that the court did not intend to in any way interfere with the rights of parties guaranteed to them by the act of Congress. • We deduce from the pleadings, the course of the trial, and the brief of the defendant, that it does not contend that it is not liable if,the receivers are liable, but that the said court is without jurisdiction to determine the liability of the receivers. We cannot for a moment assume that the Circuit Court of the United States intended to enter a decree so plainly violative of a Federal statute. , Second: The defendants invoked section 3634a of the Revisal to sustain their contention that plaintiff cannot recover damages for failure to receive and ship the piling, unless there was a written demand for the cars. But this section applies only to actions to recover penalties, and was not intended to in any way relieve the railroad of its common-law duty to transport freight tendered it within a reasonable time. In speaking to this question in Meredith v. R. R., 137 N. C., 480, Mr. Justice Connor says: “It is to be noted that the basis of this action i3 the alleged breach of the duty imposed by the common law upon carriers to safely carry, and, within a reasonable time, deliver goods tendered them for that purpose. For failure to perform this duty the person injured has a cause of action, in which he may recover such damages as he sustained within the reasonable contemplation of the parties to the contract. To this common-law duty the Legislature added a statutory duty, fixing, for that purpose, a definite time within which *185 such duty should be performed, giving to the person injured an action for a fixed penalty.” The act does not supersede or alter the duty of the company at common law. The penalty in the case provided for is superadded. The act merely enforces an ad-. mitted duty. Branch v. R. R., 77 N. C., 347. Third: It is elementary that the law does not require a man to do a vain thing. The plaintiff loaded two ears, which the defendants refused to move. He filled the depot yard and the station lane with piling and demanded cars upon which to load it, and the defendants refused to furnish them. He notified the defendants that he had more piling in the woods near-by ready to place for loading, and the defendants still refused to move that which had been loaded or to furnish cars for that which had been placed. Hnder these circumstances it would have been the acme of folly for plaintiff to have hauled the other piling and scattered it along the highway. A case directly in point is Houston and E. W. T. R. R. Co. v. Campbell, 91 Texas, 552; 43 L. R. A., 225. In that case the Court says: “And it is insisted that the plaintiff did not even have the wood prepared for shipment in this ease, and that, therefore, he cannot recover. There was but a small part of the wood ready for shipment at the time the cars were demanded which the defendant failed to furnish. But was the plaintiff bound to provide the wood with which to fulfill his contract with Haller, and to offer if at the. depot for transportation after the agents of defendant had refused to furnish cars for that purpose? We think not. A similar question arose in the case of Texas P. R. Co. v. Nicholson, 61 Texas, 491, and it was there held that a tender of the property was unnecessary where the proposed shipper had been informed in advance that it was not required and could not be accepted. That was a case of a •breach of contract to ship at a certain time; but the principle is the same. The rule announced is a general one, and applies to all offers and tenders. ' When the defendant knew that the transportation would not be furnished, he was not bound, in order to recover for the wrong done him, to prepare and offer the wood. As argued by his counsel, it was bis duty to pursue that course best calculated to lessen the damage resulting from the wrong.” *186 In Waugh v. Gulf C. and E. F. Railway Co., 131 S. W., 843, tbe plaintiff demanded cars for tbe shipment of logs. Tbe railroad failed to furnish tbe cars, and was held liable for special damages incurred by plaintiff in keeping teams ready to' haul and load tbe logs, and also for damages to logs that were worm-eaten. It appears from tbe facts in tbe above case that a part of tbe logs » bad not been hauled at all, but plaintiff bad demanded cars and tbe company bad promised to furnish them. In Etheridge v. Central of Georgia R. R., 136 Ga., 677, 25 Anno. Cases, 138, tbe Court says: “It was not necessary that tbe plaintiff should haul and deposit on' tbe right of way tbe wood he bad cut in order for him to have a right of action because of tbe company’s refusal to receive it. Tbe plaintiff alleged that be bad hauled and deposited on tbe right of way of tbe defendant company a part of tbe wood be bad cut and corded for tbe purpose of having it shipped by tbe defendant company. • It would have been an useless expense to have deposited tbe rest of tbe wood on tbe right of way if tbe company would not receive it there.” This case is on all-fours with tbe facts in tbe case at bar, and is a convincing authority. Upon consideration of tbe whole case, we are of opinion that tbe judgment of tbe Superior Court should be affirmed, and it is so ordered. Affirmed.