Baldwin v. Atlantic Coast Line Railroad

AlleN, J. Stipulations in bills of lading, covering shipments of live stock, requiring written notice of the claim for damages to be given before the stock is removed from the possession of the carrier, are valid (Selby v. R. R., 113 N. C., 588; Austin v. R. R., 151 N. C., 137), but the requirement that the notice shall be in writing is waived upon proof of actual knowledge of the injury. Kime v. R. R., 153 N. C., 398; Kime v. R. R., 156 N. C., 451; Kime v. R. R., 160 N. C., 464; Wilkins v. R. R., 160 N. C., 58. These decisions, the result of mature consideration, were rendered upon interstate shipments and after the enactment of the Elkins Act of 1903, which the defendant contends changes the rule, and we are not inclined to depart from them, at least until there is an authoritative construction of the Federal Act to the contrary by the Supreme Court of the United States, which would be binding on us. The two eases from the Circuit Court of Appeals (Kidwell v. Oregon, 208 Fed., 1; Clegg v. R. R., 203 Fed., 971) are entitled to high consideration, emanating as they do from courts of learning and ability, but while they discuss the right to waive the stipulation, neither deals with the effect of knowledge brought home to the carrier before the removal of the stock. The case of R. R. v. Kirby, 225 U. S., 155, which is also relied on by the defendant, presents an entirely different question. In that ease a special contract giving an advantage to a particular shipper at the regular rate charged to all shippers was held to be a preference. The rule permitting knowledge to supply the written notice is not a discrimination between railroads, nor is it a preference in favor of a particular shipper at the expense of others. It is a mode of proof *14 applicable alike to all railroads and in favor of all skippers, and it is ■enforced against a carrier wbo bas bad possession of tbe property with •every opportunity to know tbe extent of tbe injury and its cause. There are many well-considered cases tbat bold tbe stipulation to be void because unreasonable, and particularly when tbe notice is required to be. given before tbe removal of tbe stock; but we bave not gone tbis far. Tbe judgment of nonsuit was properly overruled. No error.