Tilley v. Norfolk & Western Railway Co.

BkowN, J. Tbe plaintiff tendered to defendant’s agent at Willardsville, N. C., a lot of loose pea-vine bay (not baled, marked, or packed), for shipment to Durham, N. C. Tbe agent told plaintiff to load tbe bay in a car on a side-track, which was done. Agent said to plaintiff that be bad no classification for loose bay, and wired to headquarters at Roanoke to see if be could ship it. Upon receiving instructions, tbe agent refused to issue a bill of lading or to receive tbe bay and ship it, but unloaded it from tbe car into a near-by barn. Plaintiff then delivered tbe bay in Durham by wagon. By motion to nonsuit, as well as prayers for instruction, defendant raises tbe question as to tbe liability of defendant for a penalty for failure to receive and ship tbe bay. Section 2631, Revisal of 1905, penalizes railroads and other transportation companies, whose duty it is to receive freights, when they refuse to receive for shipment all articles “of tbe *39 nature and kind received by snob companies for transportation” when tendered at a regular depot. Olive v. R. R., 152 N. C., 279. Tbe common-law duties of a common carrier by railroad in North Carolina as to intrastate traffic are largely superseded and supplemented by tbe statutory law of tbe State, and tbe carrier’s duty to receive sucb freight tendered for carriage is now governed by tbe rules and regulations prescribed by tbe Corporation Commission of the State. By section 1066, Revisal of 1905, the Commission is given general control and supervision of all railroad corporations, and by tbe act. of 1901, chapter 469, it is authorized to make any necessary and proper rules, orders, and regulations for tbe .safety, comfort, and convenience of passengers, shippers, or patrons of any public-service corporation, and particularly to regulate tbe shipment of articles likely to render transportation dangerous. By chapter 471, Laws 1907, tbe Commission is particularly authorized to regulate tbe carriage of inflammable articles as freight. By section 1099, Revisal of 1905, tbe Commission is given broad and general powers to “make reasonable and just rates” for freight and passenger service. The schedules of rates so made are declared to be prima fade evidence that such rates are just and reasonable, by section 1112, which provides for the certification of copies of all such schedules by the clerk of the Commission.' The Commission has authorized the transportation of baled hay and fixed and approved the charges therefor, but by its prescribed classification does not authorize the carriage of unbaled, loose hay; hence the defendant is not liable for the penalty by refusing to receive and ship the hay tendered by plaintiff. Among the rules prescribed by the' Commission is this: “Railroad companies are not required to receive cotton or other merchandise and warehouse the same unless the articles offered are in good shipping condition, well prepared by the shipper with proper packing and legible, plain marking, and accompanied with orders for immediate shipping.” Page 64, 13th Annual Report. *40 Not only does nothing in the classification authorize the carriage of the commodity offered by plaintiff, but by the plainest implication such carriage is prohibited. "Wherever in the classification hay or any like articles, such" as sea-grass or hair or waste, are classified, it is always with the requirement that the commodity be offered baled, as the railway company insisted that plaintiff’s shipment should be prepared in the present case. Such a commodity as loose hay on a railway whose motive power is fire-driven engines would be so dangerous as to imperil not only the railway company’s property, but the property of all other shippers. It is for this reason that the reasonable precaution is prescribed by the classification of the Corporation Commission that such an article and all similar articles must be rendered less dangerous by baling. It is contended, however, that the agent of defendant actually received the hay for shipment and permitted plaintiff to load it in a car, and that the classification and rules of the Commission do not prohibit the carrier from” receiving such commodity as loose hay if it elects to do so. There are three answers to this argument: First. The agent had no authority from the defendant to receive such an article as loose hay for shipment. He telegraphed at once to headquarters for instructions, and was directed to refuse to receive it, and the agent at once informed plaintiff. Newberry v. R. R., 160 N. C., 156. Second. In any view of the evidence, there was in law no receipt of the hay by the defendant. The refusal to issue a bill of lading was a refusal to receive the hay for shipment, and the fact that the agent had permitted plaintiff to load the hay into a car makés no difference. We have distinctly held that when a common carrier permits a shipper to load a car with his goods and refuses to ship the car or to issue a. bill of lading therefor, it is a refusal to receive the goods for shipment, under Revisal, sec. 2631, which is the section upon which plaintiff bases his action. Garrison v. R. R., 150 N. C., 575; Twitty v. R. R., 141 N. C., 355. Third. Plaintiff having sued to recover the penalty prescribed for a failure to receive the hay for shipment, and hav *41 ing alleged a refusal to receive it, cannot now be permitted to contradict bis own averment. Tbe motion to nonsuit is allowed, and tbe action dismissed. Eeversed.