Lucas v. Norfolk Southern Railway Co.

AlueN, J., after stating the case: -It is the duty of the initial' carrier to furnish cars suitable for the transportation of goods delivered to it, and if it fails to perform this duty, it will be liable for any subsequent damage arising from the defective condition of the car, although such damage develops on the line of a connecting carrier. Hutchison on Carriers, vol. 2, see. 499; Forrester v. R. R., 147 N. C., 554. When the connecting carrier accepts the shipment, it adopts the car or vehicle provided by. the initial carrier, and is responsible for any damages caused by its unfitness for the carriage of the goods. Hutchison on Carriers, vol. 2, sec. 501; Wallingford v. R. R., 26 S. C., 258; Shea v. R. R., 66 Minn., 102; St. Louis R. R. v. Carlisle, 78 S. W. R., 553. If, therefore, there is any evidence that the car was unsuitable at the time it was furnished by the initial carrier, and that it remained so, both the initial and the connecting carrier would be liable to the plaintiff, and the motion for judgment of non-suit ought to have been denied as to both, and we think there is such evidence. *268 The car was sealed at New Bern, and the seals had not been broken when it reached Atlanta. The vents were closed at Atlanta, according to the evidence of one witness, and no witness for the defendant testified that the vents were open when the car left New Bern. They do say the car was in good condition, and then admit that they do not remember this car. A witness for the iffaintiff testified: “The signs in the car indicated'that it had been loaded'with acid or fertilizer; the odor indicated this also. I don’t remember whether or not the car had vents. I have been a dealer in potatoes five years. From my observation and experience the effect on sweet potatoes being shut up in a car without ventilation, in which there were remains of a shipment of fertilizers, would be that the potatoes would heat and rot very quickly. They would deteriorate more quickly than if the car had been clean and well ventilated.” Another witness testified: “The first time I saw the car it was on Madison Avenue team track; the seals were intact, the vents were closed; there was no odor that I could detect with the vents and doors closed. After the vents were opened and they went into the car, there was some odor,” and one of the plaintiffs, that “the effect -upon a car-load of potatoes, if put in a car that had been previously loaded with fertilizer with the openings and vents shut up tight and shipped across the country from New Bern to Atlanta, would be to ruin them entirely. They would be no good. A No. 1 hog would not eat them.” It follows necessarily, as there is evidence that the car was unsuitable, that the motion for judgment of nonsuit ought to have been denied as to both defendants, hut the error in allowing it as to the Southern Railway Company is prejudicial to the plaintiffs, who do not appeal, and not to the codefendant.. If the liability of the Norfolk Southern Railroad Company was secondary, there would be ground for its complaint, but if liable at all, it is because it furnished an unsuitable car, sealed it, and delivered it in apparent good condition to the Southern Railway Company, and its act was the primary and originating cause of the injury. Gregg v. Wilmington, 155 N. C., 22. *269 Tbe letter, wbicb was objected to by tbe defendant, was only admitted against tbe Southern Railway Company, and bis Honor was careful to instruct tbe jury twice.that they should not Consider it against tbe present defendant, and withdrew it from tbe jury. We must assume that tbe jury were sufficiently intelligent to understand tbe instruction and honest enough to follow it. Cooper v. R. R., 163 N. C., 150. Tbe exceptions to tbe charge cannot be sustained. Tbe first part of tbe charge excepted to does not purport to be a statement of tbe law, but of tbe allegations of tbe plaintiff; but if treated as determining tbe ground of liability, it is supported by tbe authorities before referred to. Tbe defendant, in its brief, does not complain that tbe evidence was not correctly recited in tbe second part of tbe charge excepted to, and we see nothing in it that would justify a reversal of tbe judgment. No error.