Knott v. Raleigh & Gaston Railroad

Davis, f., (after stating the case). The plaintiff insists-that the Raleigh & Gaston road was the first of the continuing connecting lines of roads to Richmond, and that it washable for damages sustained on any one line of the continuous roads; that if the damage did not occur on the Oxford & Henderson road, then the defendant was responsible for the safe delivery in Richmond, and for this he cites Phillips v. R. R. Co., 78 N. C., 298. The cases are unlike. In that-case, the North Carolina Railroad Company received from the plaintiff a bale of goods, to be shipped from Raleigh, North Carolina, to Monroe, Louisiana. The bale was delivered at the terminus of the North Carolina road at Charlotte, to the Charlotte & Columbia road, was-lost between Charlotte and Monroe, and the plaintiff sought to hold the North Carolina road responsible, alleging a special contract. The issues submitted were: 1st. Did the defendant make a special contract with plaintiff to transport the goods to Monroe? 2d. Was the bale lost on the route? It was held that the receipt given by the defendant, and the assurance given by its agentito the shipper, that the goods would reach Monroe in a few days, in good condition, and that he (the shipper) could pay the freight at Monroe-when the bale reached that place, was no evidence of a spe *78 cial contract on the part of the North Carolina Railroad Company that the goods should be safely delivered at Monroe, and its liability was discharged when it delivered the goods to the next connecting road, and the jury having found upon such evidence that there was a contract, it was declared to be erroneous, and a new trial was awarded. In the case before us, there was no evidence of any contract, except that contained in the receipt given by the Oxford & Henderson road, and that could in no way bind the Raleigh & Gaston road; and the manifest given by the agent of the defendant at Henderson does not bind the company to do more than deliver the goods, as a forwarding agent, to the next succeeding line, in the absence of any contract, express or implied. There was evidence tending to show that the Raleigh & Gaston, and the Petersburg & Weldon roads, belonged to a line of associated railroads, and that these roads divided the freight charges, but there was no evidence of such a division with the Richmond and Petersburg road. Undoubtedly a connecting line of carriers may form an association or co-partnership by which each may become liable for the others, but assuming that there was in fact such an association, there was no allegation of it in the complaint, or that by any contract or agreement the Raleigh & Gaston road was to be liable for any carrier beyond its own terminus, and in the absence of any allegation or proof of such an agreement, its liability ceased when, as a forwarding agent (and in the absence of proof, it could be held to be no more, as the Oxford & Henderson road was), it delivered the tobacco in good condition to the succeeding line. - It is true that in the third allegation of the complaint, it is charged that the defendant agreed to carry the tobacco safely to Richmond, but this was denied, and though it made an issue, it was not presented nor tendered as such by the plaintiff, and cannot therefore be considered. *79 In response to the material issues tendered by the plaintiff, the jury find that the tobacco was not damaged when in the possession of the defendant, or by its negligence or that of its agents or servants. In Phifer v. Railroad, 89 N. C., 311, it was alleged that the defendant company, (the Carolina Central) “ for a valuable consideration contracted to carry cotton from Lincolnton to New York over its own and the line of other companies, using the latter as agencies of its own for this purpose,” and in a second cause of action, “that the defendant as one of a partnership association of common carriers formed by itself (and other companies, naming them) on behalf of all, undertook and agreed to convey cotton safely along and over the entire route to the terminus in New York. There was not only allegation of association but of partnership, and the evidence was certainly as strong as in the present case (in which there are no such allegations) and it was held, that the facts of that case, to which we need only refer, constituted a mere association between the different lines, each undertaking to transport over its own line, and not as agent in forwarding to the next succeeding line, and that it was not a copartnership in which one was liable for all. The subject is there discussed at length by the Chief Justice, and we refer to it and the authorities cited, (among them Phillips v. Railroad, supra,) as conclusive against the plaintiff upon the question of the liability of the defendant for loss beyond its terminus. The objection to the answer given by the witness Tilgman cannot be sustained. The Raleigh & Gaston road delivered to the Petersburg & Weldon road at Weldon; the agent of the receiving road makes examination of the goods or packages, and if not in good condition or apparent good condition, théy will not be received, but if in good condition, they are checked as “ all right.” This was the custom, and was a very good foundation for his knowledge. *80 Neither can the objection to the evidence of the witness Clark, and the record introduced by him, be sustained. Undoubtedly he might refresh his memory by a written memorandum made at the time, but the record of the state of the weather was something more; it was a record (official or quasi official in its character, and of a public nature) made in the course of his public duty, of what occurred under his personal observation, and when properly authenticated, was in itself evidence. 1 Greenleaf, §483. It was competent to show the state of the weather. Burwell v. Railroad, 94 N. C., 451. It does not appear from the record, though insisted upon here for the plaintiff, that there was any objection to the refusal of his Honor to charge*the jury, that there was no evidence of any damage to the tobacco while in defendant’s custody, and we cannot see how the refusal to so charge could prejudice the plaintiff. It was agreed that the notes of his Honor need not be read, and we cannot discover any expression of “ opinion ” as is insisted by the plaintiff, in what was said by his Honor in refusing to give the instruction asked for by the defendant. There is no error. No error. Affirmed.