Basnight v. Atlantic & North Carolina Railroad

MacRae, J.: We may consider this as a demurrer to the evidence, the defendant admitting the facts to be as testified to by plaintiff’s witnesses, and contending that upon the facts found the plaintiff is not entitled to recover. We concur entirely with his Honor below in his conclusion that defendant’s liability was not that of a common carrier. Taking the facts most strongly in favor of the plaintiff, he asked of the defendant’s freight agent a car to load with *596 lumber to go to Philadelphia. The agent pointed out to the plaintiff a car which he might use for the desired purpose. The plaintiff loaded the car with lumber, and finished on the night of the 24th of December, but did not notify defendant’s agent that the ear was ready for shipment nor of the name of the consignee. Treating the loading of the car upon defendant’s track as a delivery to defendant and an acceptance, it was not yet ready for transportation, for the defendant had not been notified of its readiness nor to whom it was to be shipped. It was necessary for the defendant to await further orders before shipment. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they are so in his custody, is only liable as warehouseman. O’Neal v. Railroad, 60 N. Y., 138; Wells v. Railroad, 6 Jones, 47; Angell on Carriers, sec. 129. He is only responsible as carrier where goods are delivered to and accepted by him in the usual course of business for immediate transportation. 2 Am. and Eng. Enc. of Law, 808. As to defendant’s liability as warehouseman, if the complaint may be construed to set up a claim on this account, by the testimony in the case, which is admitted to be true, the defendant was a gratuitous bailee, and the facis do not establish such negligence as would entitle the plaintiff to recover. Schouler, B. & C., 390; McCombs v. Railroad, 67 N. C., 193. “A negligence followed by liability to others is defined as the judicial cause of an injury when it consists of such an act'or omission on the part of a responsible person, as in ordinary natural sequence immediately results in such injury.” Wharton Neg., sec. 73. It must be the natural and proximate consequence of the act complained of. 2 Greenleaf Ev., 256; Chalk v. Railroad, 85 N. C., 423. There is no error, and the judgment is Affirmed. Avery, J., dissents.