Beville v. Atlantic Coast Line Railroad

Walker, J. Tbis action was brought to recover damages for injury to live stock, alleged to bave been shipped from Kansas City, Mo., and consigned to tbe plaintiff at Fayetteville, N. C. There was judgment of nonsuit upon tbe evidence, and plaintiff appealed. Tbe stock was received at its final destination and delivered to tbe plaintiffs by tbe defendant, tbe last of tbe carriers, in a badly damaged condition, and there was evidence that tbe damage amounted to at least $350. Plaintiffs banded to their witness, ~W. A. Vanstory, one of tbe plaintiffs, a paper, and asked him if it was tbe bill of lading for tbis shipment, and be said that it was, and that tbe bill of lading bad been filed with tbe defendant when tbe plaintiffs made tbe claim for damages and as a part thereof. Tbe case states that tbe plaintiffs proposed to introduce tbe bill of lading as evidence, and defendant objected, because there bad been no proof of its execution, and for tbis reason it was excluded by tbe court. But we do not see why it bad not been sufficiently shown. by tbe witness Vanstory to be tbe bill issued to tbe plaintiffs, and, therefore, admissible as evidence. If tbe defendant wished to test tbe competency of tbe witness to speak in regard to it, the *229 proper method was by a preliminary examination. As the evidence now stands, the bill should have been admitted. We do not see, though, that it is material to decide whether it was competent or not. There is evidence tending to show that the defendant was in possession of the stock as a common carrier. Its conduct and dealings with the plaintiffs with reference to the shipment is some proof of this; and there was abundant evidence upon the question of damages. It was not necessary to inquire as to the authority of the defendant’s agent at Fayetteville, N. C., to settle with plaintiffs upon the basis of $350, there being other proof that the plaintiffs had sustained loss to that amount. Upon a motion to nonsuit, this is sufficient to carry the case to the jury. Reasonable inferences to be drawn from the testimony tend to show that the defendant received the stock, en route, at Augusta, Ga., after they had been unloaded, watered, and fed, and that they were then in good condition, for the witness Champlain testified that he was the defendant’s yardmaster at Augusta, and that “no exception was made to the stock” and “the ear was accepted and forwarded in apparently good condition.” There was evidence tending to show the contrary, and that the stock was not injured while in the possession of the defendant. But all this conflicting evidence was for the jury to pass upon, and not for the court by a judgment of nonsuit. It should have been considered most favorably for the plaintiffs, there being a presumption that the injury occurred on defendant’s line. Manufacturing Co. v. R. R., 121 N. C., 514; 128 N. C., 284; Mitchell v. R. R., 124 N. C., 236; Meredith v. R. R., 137 N. C., 488; Furniture Co. v. Express Co., 144 N. C., 639. It is a rule of law that when a particular fact necessary to be proved is peculiarly within the knowledge of one of the parties, upon him rests the burden of proof as to it, and the rule has been applied to a shipment of goods by connecting lines of carriers, when a presumption arises that the carrier in whose possession the goods are found in a damaged condition caused the damage, it being all the proof the nature of the case permits to the plaintiff, and proof in exoneration of the carrier *230 being more accessible to him than to tbe plaintiff. Furniture Co. v. Express Co., supra; Brintnell v. R. R., 32 Vt., 665; Moore on Carriers, pp. 490, 491; Dixon v. R. R., 74 N. C., 538; Lindley v. R. R., 88 N. C., 547. We tbink there was sufficient evidence in the ease, if found to be true, to fasten liability on tbe defendant as tbe carrier responsible for injury to tbe stock. There was error in ordering a nonsuit. It will be set aside and a new trial granted. New trial.