
    E. M. WHITTINGTON v. SOUTHERN RAILWAY COMPANY.
    (Filed 15 November, 1916.)
    1. Carriers of Goods — Damaged Shipments — Refusal of Shipment.
    Damages to a shipment of goods by a railroad company, caused by the carrier’s negligence, does not justify the owner in refusing to accept them on that account, unless the damages are sufficient to render the goods practically worthless; for he is required ordinarily to accept the goods and sue for the damages upon the refusal of the carrier to pay them.
    2. Same — Pleadings—Damages.
    Where an owner of a shipment of goods has refused to accept them from the carrier on account of their damaged condition, his refusal will not prevent his recovering for the damages sustained, if he has properly pleaded them. His evidence is sufficient to sustain a recovery, and the liability of the defendant is not thereby increased.
    3. Carriers of Goods — Damaged Shipment — Measure of Damages.
    The measure of damages to a shipment of goods by a railroad company is the difference in value between the value thereof in their damaged condition at destination and what their value would have been had they been properly transported, or handled, by the carrier.
    4. Carriers of Goods — Consignor—Owner—Trials—Evidence.
    It is competent for the consignor of goods to show by parol that he is the owner thereof, and recover damages from the common carrier caused by its negligence.
    Civil, actioN tried before Cline, J., at March Term, 1916, of Guil-ROBD.
    This is an action to recover of the defendant damages for injury to certain machinery and supplies shipped by plaintiff from Macon, Georgia, to Kemersville, North Carolina. The shipment consisted of knitting-mill machinery and supplies delivered to the Central of Georgia Eailway Company on or about 30 September, 1912, and consigned to J. A. Holloman at Kernersville, North Carolina. When this car reached its destination the machinery and supplies therein were damaged. The defendant received the car containing the shipment from the Central of Georgia Eailway Company, and the defendant was the delivering carrier. Tbe admissions in tbe pleadings establish tbe following facts: (1) Tbat tbe defendant is a common carrier of passengers and freight for hire, and as such maintains and operates a line of railway connecting with tbe Central of Georgia Railway Company in the State of Georgia to Kemersville, North Carolina; (2) tbat on or about 30 September, 1912, plaintiff delivered to ' tbe Central of Georgia Railway Company a car-load of knitting-mill machinery and supplies, to be transported from Macon, Georgia, to Kemersville, North Carolina; tbat said machinery was consigned to J. A. Holloman; (3) tbat tbe Central of Georgia Railway Company is one of an association of common carriers formed by itself and tbe Southern Railway Company, and as such issued to tbe plaintiff for a valuable consideration a through bill of lading for said machinery and supplies from Macon, Georgia, to Kemersville, North Carolina; (4) tbat tbe machinery and supplies for which damages are claimed in this action were actually delivered to the said common carrier for transportation; (5) that plaintiff gave notice and made a claim for the loss and damage claimed by him within the time prescribed by the terms of the bill of lading.
    The plaintiff offered evidence tending to prove that the shipment was damaged by the negligence of the defendant.
    The plaintiff also offered evidence to prove that he was the owner of the property, although consigned to Holloman. This evidence was objected to by the defendant.
    The plaintiff also offered evidence that he had a contract for the sale of the property for about $3,000. This evidence was admitted over the objection of the defendant, but was afterwards withdrawn from the jury by the court.
    The plaintiff refused to receive any part of the shipment, although it was not a total loss.
    The defendant moved for judgment of nonsuit, which was refused, and it excepted.
    There was a verdict and judgment for the plaintiff, and the defendant appealed.
    
      Broolts, Sapp & Williams for plaintiff.
    
    
      Wilson & Ferguson for defendant.
    
   Ai/leN, J.

The motion for judgment of nonsuit is upon two grounds:

1. That as the shipment was not totally destroyed and worthless, it was the duty of the plaintiff to receive the goods, and as he refused to do so, he cannot maintain this action to recover damages.

2. That tbe cause of action alleged in tbe complaint' is not to recover tbe damages to tbe goods, but tbeir value, and as sucb cannot be-maintained, because tbe goods were not worthless and tbe plaintiff refused to receive them.

Tbe principle for wbicb tbe defendant contends is sound, and is thus stated in 3 Hutchison on Carriers, see. 1365: “As a general rule, tbe doctrine that where goods are injured tbe owner may abandon them as for a total loss, and sue for tbeir value, does not apply to contracts of affreightment. Tbe fact, therefore, that tbe goods were injured upon tbe journey through causes for wbicb tbe carrier is responsible, does not of itself justify tbe consignee in refusing †0' receive them, but be must accept them and bold tbe carrier responsible for tbe injury”; and in Wilkins v. R. R., 160 N. C., 58, wbicb was a case of total loss: “In contracts of affreightment tbe consignee under an ordinary bill of lading may not, as a general rule, reject tbe goods because "tbe same have been wrongfully damaged in tbe course of shipment. Under usual conditions be must receive tbe goods and bold tbe company for tbe injury done; and be is required further to do what good business prudence would dictate in tbe endeavor to minimize tbe loss. Tbe principle, however, does not obtain when tbe ‘entire value of tbe goods has been destroyed and tbe injury amounts practically to a total loss.’ In sucb case tbe consignee is justified in refusing tbe goods, and may sue for tbe entire amount.”

Note, however, that when tbe loss is partial tbe doctrine is that tbe owner cannot reject tbe goods and recover tbe value-, and not that be cannot recover tbe damages actually sustained; and this distinction is found in all tbe authorities.

In tbe case from Texas, cited by tbe defendant, tbe Court says: “Where a shipment of goods was only partially destroyed by tbe carrier’s negligence, neither tbe consignee nor tbe shipper is justified in abandoning tbe shipment and charging tbe carrier with its full value.” R. R. v. Elevator Co., Texas (Tex. Civ. App.), 168 S. W., 1028. And in tbe case from South Carolina: “A carrier having goods in possession for transportation acquires no title to them, as tbe goods remain tbe property of the owner, Ilis right of action against tbe carrier is for tbe entire value of tbe goods if lost, or made entirely worthless by tbe carrier’s default; and in case of destruction of value, tbe recovery is not affected by tbe owner’s acceptance or bis refusal to accept the goods. On tbe other band, if tbe value is merely impaired by actual injury in tbe bands of tbe carrier, or by delay in tbe carrier, tbe consignee is bound to receive tbe goods, and bis right of action is limited to tbe impairment of value due to tbe delay in. carriage or injury to tbe goods.” McGrath v. R. R., 91 S. C., 552.

In Parsons v. Express Co., 25 L. R. A. (N. S.), 843, the plaintiff refused to receive tbe shipment, and sued to recover tbe value, and tbe Court held tbat tbe “Defendant was entitled to bave tbe case submitted upon a proper theory, and tbe verdict of a jury upon the amount of plaintiff’s damage, which was the difference between tbe value when delivered to tbe express company for shipment and its value when finally tendered to plaintiff at its destination,” and R. R. v. Cumbie, 141 S. W., 939; R. R. v. Everett, 37 Tex. Civ. App., 167; and R. R. v. Moore, 47 Tex. Civ. App., 531, are to tbe same effect.

This is tbe rule applied by bis Honor, as be instructed tbe jury tbat tbe measure of damage was “Tbe difference between tbe value, reasonable market value, of tbe shipment at tbe time it reached Kernersville, in tbe condition it then was, and what would bave been a reasonably fair value of tbat same shipment at Kernersville at tbe same time, but for tbe damage suffered .by it or sustained to it, owing to tbe negligence of tbe defendant. You would take and apply tbe rule this way: You would say, "What would bave been our finding as to a fair valuation of tbat shipment if it bad come from Macon to Kernersville in as good plight and condition as it was shipped? And then you would ask tbe second question, What is tbe depreciation, bow much was tbat machinery lessened in value when it came to Kernersville, on account of tbe negligent failure of tbe defendant to transport it safely? And tbat difference would be tbe measure of damages.”

This rule is not only supported by authority, but seems to be reasonable and just, and it imposes no additional burden on tbe carrier.

If tbe plaintiff bad received tbe shipment be would bave been entitled to recover as damages tbe difference between tbe value óf goods in their damaged condition and their value if they bad not been damaged, which is all be has recovered, and we see no reason for denying this recovery because of refusal to receive tbe shipment, when this has in no way increased the liability of tbe defendant.

We are also of opinion that the complaint alleges a cause of action, which is sustained by tbe verdict.

It alleges tbat tbe defendant received tbe shipment, tbat it was damaged during transportation by tbe negligence of tbe defendant, and tbat tbe plaintiff has suffered damages in tbe sum of $3,000 by reason of tbe failure of tbe defendant to properly and safely haul, transport, and deliver tbe machinery and supplies aforesaid, and in carelessly and negligently breaking, damaging, and destroying said machinery and supplies while tbe same was being carried and transported as aforesaid.

Tbe evidence introduced to prove tbat the plaintiff, who was tbe consignor in tbe bill of lading, was tbe owner of tbe goods, was competent. Summers v. R. R., 138 N. C., 295; Rollins v. R. R., 146 N. C., 153; Cardwell v. R. R., 146 N. C., 218.

Tbe evidence of a contract for tbe sale of tbe goods by tbe plaintiff was withdrawn from tbe jury.

No error.  