Southern Textile MacHinery Co. v. Piedmont & Northern Railway Co.

May 12, 1920. The opinion of the Court was delivered by The plaintiff had a verdict and judgment for damage to a lot of mill machinery which the defendant, amongst others, carried. The initial carrier from Fall River, Mass., was the New York, New Haven Hartford; thence by other carriers, the Seaboard Air Line being one of them, to Greenwood, S.C.; thence by the defendant company to Riverside Junction, a point near the city of Greenville; thence by the Southern Railway, over its tracks, to the plaintiff's warehouse, in the city of Greenville. The machinery was a carload lot, with unbroken seals the whole distance from Fall River to Greenville. There *Page 143 is no dispute about the damage to the property; the only dispute is about the agency which accomplished the damage. The testimony does not show what agency did the damage; it only tends to show that when the machinery left Fall River it was intact, and when it arrived at the plaintiff's warehouse it was the contrary. The distance betwixt the termini is about 2,000 miles; the distance from Greenwood to Greenville is about 60 miles. To fix the damage on the defendant, the plaintiff relies on the rule we laid down in Willet v. So. Railway, 66 S.C. 478,45 S.E. 93, and again followed in Eastover v.A.C.L., 99 S.C. 473, 83 S.E. 599. That is a rule of convenience, and of necessity, as well; but it operates only until the terminal carrier proves that not to be true which is assumed to be true. In the instant case, however, the defendant denies that it was the last carrier, and that the rule has, therefore, no application to it. The testimony does show that at River side Junction, which locality is a short distance from the plaintiff's warehouse, the sealed car was put into the hands of another carrier, and that such carrier transported the car over its tracks for a short distance to the plaintiff's warehouse. The defendant thus seeks to save itself from the presumption, and the consequences of it, of being the last person to have had the custody of the car. In answer to that contention the plaintiff says that the testimony establishes the fact that the other carrier only "switched" the car over its tracks for the defendant for a compensation of $2, and that the other carrier got no part of the through freight charges, and from that circumstance the plaintiff draws the conclusion of law that the other carrier was not at all the last connecting carrier of the car, but was merely an agency of the defendant company to carry the car to its ultimate destination. The trial Court left it to the jury to find who was last carrier. *Page 144 It is not denied by the plaintiff, but is admitted, that the car was "switched" over the tracks of another carrier from Riverside Junction to the plaintiff's warehouse. The issuable fact is, What responsible agency did the switching? which is but another name for carrying. The other carrier, it is true, got no part of the through freight charges; but that circumstance does not conclusively fix the character of its service. The other carrier got its remuneration from another source, fixed by another agency than the plaintiff's contract with the initial carrier, as evidenced by the bill of lading. The testimony, beyond a reasonable doubt, for there is none to the contrary of it, establishes how the other carrier came to take hold of the car and to charge $2 for the service of switching; it was pursuant to a rule of the Interstate Commerce Commission. It is plain, therefore, that the other carrier was not acting for the defendant, but was acting pursuant to the direction of another authority. In that view the defendant was not the last carrier, and is, therefore, not chargeable with the presumption that it wrought the damage. A verdict ought to have been directed for the defendant, and must yet be. The judgment is reversed. July 2, 1920.