McGowan v. Wilmington & Weldon Railroad

Merrihox, J. (after stating the facts). The first exception cannot be sustained. What the witness would have said in reply to the question specified does not appear, as it should do, but inferring that he would have answered in the affirmative, such evidence was irrelevant and immaterial. The plaintiff sued to recover penalties which he alleges the defendant incurred by its failure to ship twenty-seven bags of rice marked , as it was bound to do within five days next after the rice was delivered to it for shipment. The evidence of the plaintiff, including the bill of lading, went to prove that the particular bags of rice in question, were delivered — 424 — by bis agent, the witness Robert Merritt, to tbe defendant, for shipment, on the 21st day.of November, 1884. The only witness introduced by the defendant, J. PI. Toler, testified that he. was agent of the defendant at the station where the rice was delivered for shipment at the time of the delivery, lie admitted that the plaintiff’s rice mentioned, was so delivered for shipment on the day named, and that he did not receive any instructions not to ship it, but on the contrary, he testified that he did ship it. Whether he did or not was the sole question at issue. It was therefore, immaterial to inquire whether persons who delivered rice for the plaintiff to the defendant, gave directions in respect to the time of shipment or not. As to the rice in question, the uncontra-dicted evidence, both of the plaintiff and defendant, went to show that no instructions were given not to ship it. This being so, in the course and order of such business, it was the the duty of the defendant to ship the rice promptly. This leaves out of view the evidence of the witness of the plaintiff, who testified that he told the agent of the defendant to ship it, and the latter promised to do so within two or three days. Nor canthesecondexception.be sustained. If it be granted that the book of shipments referred to should have been produced, the answer to the question objected to by the defendant, did not prejudice it; it was not favorable to the plain-iff at all, but rather tended to help the defendant. When the question objected to but allowed, elicits nothing material, and nothing to the prejudice of the party complaining, this is not ground for a new trial. A new trial in such case, will be granted, only when such party lias suffered prejudice, or has probably done so. • We think also, that the third exception is groundless. It is clear that, in the absence of any express contract between the shipper of goods and the common carrier to the contrary, if the latter receives goods to be shipped, there is an implied — 425 — agreement on its part, to ship them within a reasonable time, and the Statute (The Code§1907) has fixed that time to be within five days next after the carrier received the goods for shipment. Besides, the Statute expressly provides, that the carrier — a railroad company — shall ship them within five days after it receives the goods for shipment, unless otherwise agreed between the company and the shipper. Branch v. W. & W. R. R. Co., 77 N. C., 347. And so, also, the fourth exception is without force. The Court manifestly intended to tell the jury, and did so in effect, that the defendant had not set up any legal excuse for failing to ship the goods, but it was cautious to say in that immediate connection, “ if there was such failure,” thus leaving to them the sole question submitted to them, as both parties conceded: “ whether or not the rice had been shipped.” The fifth exception is without merit. The evidence in respect to the rice delivered by Phillips and Green for the plaintiff to the defendant, was immaterial; that rice was not in question. The sole question was whether or not the twenty-seven bags of rice delivered by Merritt for the plaintiff, were shipped? As wo have seen, the evidence of the defendant, as well as that of the plaintiff, showed that as to that rice, there were no instructions not to ship it. This being true, what just or proper weight could the testimony as to the rice delivered by the parties first named, have upon the matter in issue ? Nor can the sixth exception prevail. The liability provided against by the exceptive words in the bill of lading, set forth in the exception, is to “wrong carriage, or wrong delivery of goods that are marked with initials, numbered, or imperfectly marked.” It is no part of the plaintiff’s complaint that the rice was wrongly carried or wrongly delivered to a supposed consignee ; the ground of the action is, that it was not shipped — 426 — at all. It was not set up as a matter of defence, that the rice was not marked with proper directions, nor was any imperfection in that respect brought to the attention of the plaintiff within a reasonable time, as ought so have been done, if they existed. What we have said, in effect disposes of the seventh exception. We see no reason why the Court ought not to have given the judgment it did give. The twenty-sixth section of the defendant’s charter, (2 Rev. Statutes, p. 344), provides that its officers may establish its rates of freights and fares in their discretion, not exceeding a maximum prescribed. The counsel of the defendant appellant contended in his brief, that the Statute (The Code, §1967), could not be construed as applying to it, or if so, as to the defendant, it was void, because it impaired the obligation of the contract between it and the State, in the respect mentioned. The statutory provision last cited, applies to all railroad companies doing business in this State, and its obvious purpose is to compel them to ship over their roads respectively, goods delivered to them for shipment, within a reasonable time after receiving them, which is declared by its terms to be within five clays next after that time. The Legislature has deemed it a j ust, reasonable and necessary regulation, and it is the plain duty of the Courts to give it effect, in all proper cases in the course of procedure. It is severe, it is true¡ but it is not unreasonable. It may be observed without serious inconvenience, and yet it' seems that it is not infrequently disregarded, thus demonstrating the necessity for it. That the Legislature has power to compel railroad companies, and other like common carriers, to discharge the duties and obligations they owe to the public, and individuals who travel on, and ship freights over their roads, by reasonable statutory regulations, and to compel a due observance — 427 — of these by fines and penalties, is too well and thoroughly settled by judicial authority to admit of question. Because of their quasi public nature — their relations to the public— the fact that they hold themselves out to the world as ready to carry freights for shippers, regularly, for reasonable compensation, and especially as to railroad corporations, because they have and exercise franchises, rights, privileges, and advantages of the public, and granted by the public authority, they are subject to just legislative control. The Legislature may reasonably regulate their methods of business in a general way so as to promote the public good, having due regard for their rights in all respects. They have rights as well as the public, that the law protects, but to the extent that the exercise of their rights by themselves concern and effect the public, the latter through its constituted authority, must have a voice in such exercise of them. This Court has repeatedly upheld the statute now under consideration, as a valid exercise of legislative authority. Indeed, it has been so upheld in its application to the defendant. Branch v. W. & W. R. R. Co., supra. See, also, Katzenstein v. Railroad Company, 84 N. C., 688; Whitehead v. Railroad, 87 N. C., 255. This Statute does not regulate the price of, freights and fares of the defendant, nor does it purport to do so. It simply imposes a penalty of twenty-five dollars on each railroad doing business in this State, for every day it may fail to ship goods delivered to it for shipment, after five days next after such delivery, unless the shipper and the company agree otherwise. It leaves the defendant free to determine its charges for carrying freights — its only purpose is to compel it to ship goods promptly in the absence of agreement otherwise. The provision of the defendants’ charter referred to above, does not abridge the power of the Legislature to make all reasonable regulations to expedite and render certain the shipments of freights over its roads. There is noth — 428 — ing in its charter .that in terms, or by necessary implication,, indicates a purpose to part with such power. It is difficult to understand how the Legislature could part, with, or barter away any measure of an essential power of government, but if it could do so at all, it could only do so by positive grant, or by words and provisions so plain in their meaning as to leave no doubt of such purpose. Stone v. Farmers Loan and Trust Company, 116 U. S., 5, 307; Stone v. Railroad Company, Ibid., 347; Stone v. Railroad Company, Ibid., 352; Missouri Pacific Railroad Company v. Humes, 117 U. S., 512. There is no error, and the judgment must be affirmed. No error. ' Affirmed.