Brown v. . Payne

Stacy, J. Upon the record, we think the first issue should have been submitted to the jury under a different instruction. The liability of a common carrier of goods, as carrier, attaches only after acceptance and receipt of freight by it for shipment. Basnight v. R. R., 111 N. C., 592; Wells v. R. R.. 51 N. C. 47; 10 C. J.. 231. *383 The ease of Bell v. R. R., 163 N. C., 180, chiefly relied on by plaintiffs, was an action against tbe railroad for failure to furnish cars within a reasonable time as required by the statute. But the suit at bar is not to recover the statutory penalty for failure to make shipment, but for the value of the lumber destroyed. There was evidence on behalf of plaintiffs tending to show the manner and custom of shipping lumber from Elmwood station as follows: “It is the custom when a shipment is made to place the goods in the car and then go to the agent and turn it over to him.” And again, the witness Crouch testified: “The defendant’s agent was present when I was delivering the lumber, and he accepted the order for the car and said that he would get it as soon as he could.” It will be observed that accepting an order for a car and accepting lumber for shipment are two different things. The one does not establish the relation of carrier and shipper, while the other ordinarily does. Furthermore, there was evidence tending to show that the shipment had not been turned over to defendant’s agent at the time of the fire. Hence, in tbe present state of tbe record, we think the case must be retried and the issues submitted to another jury. New trial.