Brooks Manufacturing Co. v. Southern Railway Co.

Brown, J. Tbe first assignment of err.or is tbat bis Honor erred in bolding tbat tbe defendant was required not only to transport tbe car from Cary to Greensboro witbin tbe statutory period, but must witbin tbat time place tbe car upon tbe plaintiff’s sidetrack. 1. We do not construe bis Honor’s judgment to bold exactly tbat, under tbe authority of tbe cases of Hilliard v. R. R., 51 N. C., 343, and Alexander v. R. R., 144 N. C., 95, cited in bis judgment, it was tbe duty of tbe defendant to deliver tbe loaded car to tbe plaintiff on its private sidetrack. Neither of those cases sustain tbat position. On tbe contrary, tbe Alexander case expressly bolds tbat tbe carrier is not penalized by section 2632 for delay in delivering tbe freight to tbe consignee after transportation ceases, and tbat such section does not include a failure to deliver, but only a failure to transport, “delivery necessarily requiring tbe concurrence of tbe consignee and having a distinctive meaning.” Although this statute was amended by cb. 461, Laws 1901, so as to require a delivery at destination tvithin tbe time specified, we have held tbat when tbe goods arrive and tbe carrier has notified tbe consignee tbat it is ready to deliver, it has discharged its duty. Wall v. R. R., 147 N. C., 411. But this statute as amended does not undertake to compel a railway company to deliver loaded cars off its own right of way and tracks onto tbe private track of an individual or private corporation. Therefore, a delivery of tbe carload of lumber to plaintiff upon its private track, belonging to it and leading to its mill, must of necessity be a matter of agreement between plaintiff and defendant, and cannot come witbin tbe purview of section 2632. A railroad company cannot be compelled to operate its engines on a private track belonging to a private corporation or individual over which tbe railroad company has no control or supervision. But whatever reasons tbe judge gave for bis judgment, tbe facts set out in tbe special verdict sustain it. It is found as a fact therein tbat “tbe car in question was not placed for unloading elsewhere than on tbe plaintiff’s siding.” While tbe defendant was under no legal obligation to haul this car off its own tracks and onto tbe private tracks of plaintiff, yet it was its- duty to place tbe car in a position for unloading, so tbat it may be accessible for tbat purpose. *669 Transportation ceases when the duty of the carrier as a warehouseman commences, and in respect to freight transported in carload lots, when the car' reaches destination and is placed for unloading. Wall v. R. R., 147 N. C., 408. "What particular parts of the carrier’s tracks and freight yards may be used for such purposes must of necessity be left to its discretion, but the car must be reasonably accessible and placed for delivery before transportation is fully ended. 2. The second assignment of error is that his. Honor did not hold that Durham was an intermediate point, and did' not allow the defendant any time for necessary delay there. ¥e are unable to find in the special verdict any fact that warrants the contention that Durham is an. intermediate point between Cary and Greensboro within the meaning of the statute. What constitutes such intermediate point is discussed and decided in Wall v. R. R., supra; Davis v. R. R., 145 N. C., 207. Affirmed. Hoke, J., concurs in result.