Norfolk Southern Railroad v. Albemarle Fertilizer Co.

Clarkson, J. The controversy between the contending parties was as to whether the shipment of the eight cars was a continuous or through freight shipment or a local shipment. Was there legal evidence sufficient to go to the jury that it was a continuous or through freight shipment? The plaintiff contending and producing evidence on the trial and submitting prayers for instructions that it was not a continuous or through shipment, but local and it had performed its special contract and demurrage should be allowed for admitted delay over free time allowed by law, and on all the evidence it should recover, and the defendant contending and submitting evidence to the contrary. *139 The testimony of J. TL Leroy, bearing on the question was as follows: “I am manager of the Albemarle Fertilizer Company. I was shipping fertilizer by the North River Line in January and February, 1921, and shipped these cars that have been testified to here. We loaded them in cars at our plant. ¥e have printed forms which we place on the side of the car and it is marked on that printed card ‘To the North River Line for the different consignees,’ and when that card is found there the Norfolk Southern man takes it to the North River Line. After we load the car at the plant we have nothing at all further to do with it. The North River Line issued the bills of lading. I mean that the card tacked on the cars had the direction to the North River Line and the name of the consignee at some point on the North River Line written on the card also. We had these cards written for that purpose and the yardmaster knows exactly what to do with that. . . . The custom is, as I said, that we load these cars, put the tag or placard on the cars and the yardmaster takes them and is governed by that card as to where to take them, North River Line, whether they go-, south on the Norfolk Southern or whether going north.” The court below gave the contentions and charged the jury as follows: “Where a railroad company receives cars for through freight shipment to consignees beyond its line and it is necessary to transport cargo between connecting lines it would not be the duty of the consignor to unload and release cars at the point of transfer, and if you find by reason of the method of doing business between plaintiff and defendant that the defendant merely placed a placard on its loaded cars showing the route and destination, and the plaintiff took the cars without further instructions and transported the cars' as far as its line extended, and that it was the intention of the parties as shown by such conduct and custom that the plaintiff should receive and transport the cars as one of the carriers in continuous' shipment, then nothing else appearing, though no bill of lading or other written contract was issued, it would be a continuous shipment and would not be obligatory on the consignor to unload the cars at the point of transfer. -But, if you find the defendant, by paying switching charges to the Norfolk Southern Railroad Company and. by taking a bill of lading from the North River Line, recognized this as a separate and distinct shipment or separate and distinct steps of the transportation of its freight, then the duty would rest upon the defendant to unload and release the cars and to apply the rules and regulations with respect to the demurrage.” We think the evidence excepted to by plaintiff on the trial below was properly allowed. There was no error in the refusal of plaintiff’s prayers for instruction. There was sufficient legal evidence to be submitted to the jury and they have found for the defendant. *140 Defendant’s evidence tended to sbow that a usage or custom prevailed between all tbe parties to tbe transaction, to treat tbe dealings witb plaintiff as a through freight shipment, and defendant had nothing further to do with the shipment when it was delivered to plaintiff. The court below allowed this evidence, and we can see no error. In McDearman v. Morris, 183 N. C., 78, it is said: “Where there is a well known usage or custom which obtains in a given trade or business, it is presumed that all who are engaged in said trade or business where it prevails contract with a view to such usage or custom, unless the presumption is excluded by agreement of the parties. Hazard v. New England Marine Ins. Co., 8 Pet., 557; 27 R. C. L., 162, and cases cited in note.” Oil Co. v. Burney, 174 N. C., 382; May v. Menzies, 186 N. C., 149. We do not think the cases cited in plaintiff’s brief applicable in the present case. For the reasons given, there is No error.