
    T. W. MEWBORN & CO. v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, the SOUTHERN RAILWAY COMPANY, and the NORFOLK SOUTHERN RAILWAY COMPANY.
    (Filed 1 December, 1915.)
    1. Interstate Commerce — Live-Stock Biil of lading — Carriers—Connecting Lines — Intermediate Lines — Damages—Evidence—Presumptions—Trials —Questions for Jury.
    Interstate Commerce Act, and other recent amendments placing the-entire regulation of interstate commerce under Federal control, and making the initial carrier liable for damages to a shipment of goods, does not relieve the intermediate or the delivering carrier of responsibility for its own negligence in damaging a shipment, or affect the decision of our State court in requiring them to show which of the carriers,, in a connecting line of carriage, is responsible when the goods are shown to have been received in good condition by the initial carrier and delivered at destination in bad condition by the final one, such information being peculiarly in the knowledge of the carriers, and otherwise depriving the injured party of his right to have the issue passed upon by the jury.
    2. Interstate Commerce — Amendments—Jurisdiction—State Courts.
    The proviso in the Carmack amendment to the Interstate Commerce-Law preserving to the interstate shipper any remedy or right of action he may have under existing law, has reference .by interpretation to such rights and remedies as he may have under the law as it is recognized and enforced in the Federal courts, and may be adjudicated in the courts of the State having jurisdiction.
    3. Interstate Commerce — Live-Stock Bill of Lading- — Stipulations—Damages-—Written Notice — Waiver—Federal Decisions.
    The stipulation in a live-stock bill of lading requiring that notice in writing be given the carrier’s agent at destination, of claim for damages to the animals shipped, before they are removed or mingled with other animals, may be' waived by the carrier’s agent at the delivering point; and our decisions to this effect, in the absence of controlling decisions of the Federal courts to the contrary, are reaffirmed under the facts and circumstances of this case, it appearing that the fact that the animals-. were badly and fatally injured was called to the attention of the final carrier’s agent, and consignee requested by him to take the stock to his own barn where they could better be examined, without evidence that they were mingled with other animals.
    4. Same — Discrimination.
    The principle of waiver by the agent of the stipulation in a live-stock bill of lading that written notice of claim for damages to the animals shipped be given him at destination, before the animals are removed from the carrier’s possession or mingled with other animals, etc., as recognized and upheld by the decisions of our. State courts, is not in contravention of the Federal laws prohibiting a preference being given among the users of common carriers. Baldwin v. R. R., ante, 12, cited and applied.
    Appeal by plaintiffs from Peebles, J., at March. Term, 1915, of LENOIR.
    • Civil action. The action was to recover damages to live stock, alleged to have been negligently injured in shipment over defendant roads, in March, 1912. Defendants denied liability. The evidence having been submitted, on motion, there was judgment of nonsuit as to •each and all of defendants, and plaintiffs excepted and appealed.
    
      G. G. Moore for plaintiffs.
    
    
      Bouse & Land for defendants.
    
   HoKE, J.

There were facts in evidence tending to show that, on or about 8 March, 1912, plaintiffs, under a live-stock contract, shipped a lot of horses and mules from Flemingsburg, Ky., to Kinston, N. C., passing over the Cincinnati and Flemingsburg Railroad, the initial carrier, to Johnston, Ky.; thence over the Louisville and Nashville Railroad to Knoxville, Tenn.; thence over the Southern Railway to Golds-boro, N. C.; thence over the Norfolk Southern to Kinston, N. C., where, on 12 March, they were delivered to plaintiffs in very bad condition; two of them so injured that one of them died that night and one the next day, and another, worth $160, had his eye hurt so that he went blind and was sold for $15, his value on the Kinston market, and fifteen others in bad physical condition, etc.; that the condition of the stock was called to the attention of the railroad agent of the Norfolk Southern, at Kinston, N. C., as they were being unloaded, and he requested plaintiffs to take them over to plaintiffs’ own barn and he would then come over, where they could be more thoroughly examined.

There was testimony tending to show that the stock was in good order and condition when shipped at Flemingsburg, Ky., and also that they continued so until delivered to the Louisville and Nashville Railroad, at Johnston, Ky., and the contract of shipment was- also offered in evidence, containing a provision as follows: “As a condition precedent to the shipper’s right to recover any damage for loss or injury to said animals, be will give notice in writing of bis claim thereof to tbe agent •of tbe railroad company or other carrier from whom be receives said animals before said animals are removed from tbe place of destination above mentioned, or from tbe place of delivery of tbe same, to tbe said shipper, and before said animals are mingled with other animals,” etc., and it was shown, further, that tbe claim- for said wrong and injury was not made by plaintiffs until 2 April, 1912, and after tbe stock bad been removed from tbe terminal station.

On these, tbe facts chiefly relevant to tbe issue, it is urged for appel-lees, as we understand tbe argument, that tbe judgment of nonsuit should be sustained, by reason of certain of the more recent amendments to tbe Interstate Commerce Act, and notably tbe statute known as tbe Carmack amendment, 29 June, 1906, 34 Statutes, 595, which, as •construed by well considered decisions of tbe Supreme Court of tbe United States, has placed tbe entire subject of interstate shipments under Federal control and has superseded all State policies and regulations in conflict with these provisions, and, as a consequence, tbe principle heretofore prevailing in this State, that on proof of delivery of live stock or other goods to an initial carrier, in a continuous line of shipment in good condition, and a delivery by a final carrier in a damaged •condition, importing negligence, a prima facie case was made against tbe carrier sued, permitting tbe shipper to go to tbe jury on tbe question of such carrier’s liability, may no longer be recognized or enforced; and this being true, there was no evidence offered to sustain tbe present demand.

A perusal of tbe cases cited, R. R. v. Fur. Co., 237 U. S., ...; Express Co. v. Cloninger, 226 U.S., 491; R. R. v. Riverside Mills, 219 U. S., 186, and others of like import, seem to be in full support of tbe premise of this position; but, to our minds, it does not at all follow that tbe rule heretofore prevailing in this State in reference to the proper trial of causes of this character has been abrogated. A consideration of our decisions on this subject will show that it is a rule of proof, valid, on tbe principle very generally recognized here and elsewhere, that, in a judicial trial, when facts relevant to an issue lie peculiarly within tbe knowledge of one of tbe litigants, such litigant has tbe burden of showing them forth in evidence; a principle very insistent where otherwise the other party would be practically deprived of testimony on tbe issue that be is justly entitled to have. This rule of evidence was applied with us, as to tbe initial carrier, in Meredith’s case, 137 N. C., 478-484, where Connor, J., speaking to tbe subject, cites authority as follows:

“Tbe principle is stated by Mr. Justice Brown in U. S. v. R. R., 191 U. S., 84, thus: ‘When a negative is averred in tbe pleading or tbe plaintiff’s case depends on tbe establishment of a negative, and tbe means of proving the fact are equally witbin tbe eontro 1 of eacb party, tben tbe burden of proof is upon tbe party averring tbe negative; but when tbe opposite party must, from tbe nature of tbe case, bimself be in possession of full and plenary proof to disprove tbe negative averment, and tbe other party is not in possession of sucb proof, tben it is. manifestly just and reasonable tbat tbe party wbo is in possession of tbe proof should be required to adduce it; but upon bis failure to do so we must presume jt did not exist, wbicb of itself establishes a negative.5 He further says: ‘This burden, however, wbicb was simply to meet tbe prima facie case of tbe Government, must not be confounded with tbe preponderance of evidence, the establishment of wbicb usually rests upon tbe plaintiff.5 The exact question was considered by tbe Supreme Court of Vermont in Brintnall v. R. R., 32 Vt., 665, Poland, J., saying: ‘The argument is that, showing the box did not arrive at Boston, tbe end of tbe route, but was lost, does not prove or tend to prove tbe defendants did not deliver it to tbe next carrier, because it might have been lost between Castleton and Boston. It must be admitted tbat it is very inconclusive proof of tbe fact, but still we think it has some tendency to establish it. Tbe box is proved to be in tbe bands of tbe defendants; there is no evidence tbat anybody else ever bad it, or tbat it was ever in tbe possession of any other carrier in tbe line. Tbe usual and ordinary course of things, what is always expected and what generally proves true, is that goods forwarded upon sucb a line arrived at their destination, and therefore tbe fact tbat goods do not arrive at one end of tbe line is some evidence they were not sent from tbe other. . . . But we place it upon tbe ground mainly tbat this was really all the proof the nature of the case permitted to the plaintiff, and tbat proof of a delivery by tbe defendants to tbe next road was a matter tbat was peculiarly witbin the power of tbe defendant, and not at all in tbe power of tbe plaintiff, unless tbe defendant and tbe connecting roads preserved evidence of tbe transfers of all freight from one road to another. . . ■. And on proof tbat any carrier on tbe route received tbe goods in good condition, tbe burden of proof rests upon sucb carrier to show delivery in tbe same condition to tbe next carrier or to tbe consignee, it being peculiarly and almost solely witbin its power to make sucb proof.55 3 Wood on Railroads, 1926; R. R. v. Tupelo Co., 67 Miss., 35; R. R. v. Emrich, 24 Ill. App., 245. And, as to tbe final carrier, in whose possession tbe goods were found in a damaged condition importing negligence, in Mitchell v. R. R., 124 N. C., 236, eases tbat have been several times since recognized as authorities; Brinson v. R. R., 169 N. C., 425; Lyon v. R. R., 165 N. C., 143; Harper v. Express Co., 144 N. C., 639. Tbe same principle is upheld in well considered eases in other State jurisdictions, R. R. v. Slattery, 76 Neb., 721, and R. R. v. Williams, 55 L. R. A., 289; and a like position for tbe trial of causes obtains also in the Federal courts. R. R. v. Wallace, 223 U. S., 481; Brinson v. R. R., supra, 86 S. E., 371-374. In R. R. v. Wallace, supra, Associate Justice Lamar, delivering the opinion, said: “Thus considered, when the holders of the bills of lading proved the goods had not been delivered to the consignee, the presumption arose that they had been lost by reason of the negligence of the carrier or its agents. The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract was then cast upon the carrier. The plaintiffs were not obliged both to prove their case and to disprove the existence of a defense. The carrier and its agents, having received possession of the goods, were charged with the duty of delivering them or explaining why that had not been done. This must be so, because carriers not only have better means, but often the only' means, of making such proof.”

And, in our opinion, there is nothing in the Federal legislation that interferes with this principle of evidence as a rule of proof. It is true that in the decisions of our highest court, dealing with the Carmack and other amendments, it is held “that the initial carrier is made responsible for any loss, damage or injury to the goods carried by it, by any common carrier, railroad or transportation company, .not as absolute insurers, but to be fixed and determined according to the principles of general law applicable to common carriers and as modified by statute relevant to the subject,” Brinson v. R. R., citing Express Co. v. Cloninger, and that the opinion of Mr. Justice Lamar, just cited, is dealing with a case against the initial carrier. It is true also that these cases hold that the proviso in the Carmack amendment preserving to the interstate shipper any remedy or right of action he may have under existing law has reference by interpretation to such rights and remedies as he may have under the law as it is recognized and enforced in the Federal courts (Express Co. v. Cloninger, supra), but it is also held that the shipper’s right of action, accruing to him under that law, may be enforced in the State courts having jurisdiction. R. R. v. Wallace, supra. Although by the amendment the initial carrier has been made responsible for the negligent default of each and all the connecting carriers in an interstate shipment, there is nothing in this provision which should prevent liability from attaching to the intermediate or final carrier against whom such default could be established by proper evidence. This has been directly ’ held in several well considered cases. Treadwell v. R. R., 150 Wis., 259; St. L. Coast R. Co., 13 Ga. App., 102, 78 S. E., 1019, and other cases cited in note to R. R. v. Alexander, 227 U. S., 218; 36 Anno. Cases, 83. And as a rule of proof, just in itself and recognized as a general principle of the law of evi-deuce, we think that the principle referred to in the trial of that cause should still prevail. In the recent case of R. R. v. Furniture Co., supra; a decision much relied on by defendant, there is decided intimation in the opinion of Associate Justice Holmes that the principle, as a rule of proof, presents no interference with the Carmack or other amendments, and the State statute in that case was set aside because it imposed a penalty and, as a matter of substantial right, fixed the carrier sued with liability if it should fail within forty days to inform the claimant, in the exercise of due diligence, when and where and by which carrier the goods had been damaged.

It is further contended that the nonsuit is proper because of the admitted fact that the stock was removed to the stables of plaintiffs before written notice of the claim was presented and in violation of section 11 of the contract. This provision has been recognized as a valid stipulation with us (Duvall v. R. R., 167 N. C., 24, 25, citing Austin v. R. R., 151 N. C., 137; Selby v. R. R., 113 N. C., 594), and it has been also repeatedly held that the stipulation may be waived by the company and will be considered waived if the company or its agents in charge had knowledge of the damage and injury to the stock at the time the same were unloaded at the point of destination. Kime v. R. R., 156 N. C., 451; s. c., 153 N. C., 398; Jones v. R. R., 148 N. C., 581.

In the present ease there was testimony not only that the railroad agent at Kinston had knowledge of the claim and of the injury to the stock, but that he requested plaintiffs to take them from the company’s receiving pen over to plaintiffs’ stables, where he could come over and make a more careful examination. It is insisted, however, that this principle of waiver should no longer prevail, as to allow it would have the effect of granting a preference in favor of plaintiffs contrary to the Interstate Commerce Act and amendments thereto.

In these statutes conferring upon a commission the power to make reasonable and necessary regulations as to interstate shipments, it was no doubt the primary purpose to prevent undue preferences and dis-criminations among shippers; but there is, in our opinion, nothing in the principle objected to here that in any way militates against this salutary purpose. The stipulation, inserted to imotect the carrier from improper or unconscionable claims, under circumstances where he would have no means of rebutting proof available, has no natural or necessary connection with or influence upon the rates charged, nor does the principle of waiver, as applied in this State, have any tendency to create a preference. There have been, as yet, no authoritative decisions to that effect, and, as now advised, we are of opinion that the principle as it has obtained here applies and should control in the present case. We have already so held in a case at the present term, Baldwin v. R. R., ante, 12, in which Associate Justice Allen, delivering the opinion, said:

“The rule permitting knowledge to supply the place of written notice is not a discrimination between railroads, nor is it a preference in favor of a particular shipper at the expense of others. It is a mode of proof applicable alike to all railroads and in favor of all shippers, and it is enforced against a carrier who has had possession of the property with every opportunity to know the extent of the injury and its cause.”

In the present case, as stated, the agent at the terminal station not only had his attention called to the condition of the stock at the time they were first unloaded, but requested plaintiff to take them to his stables, where they could be examined with more care. There is nothing tending to show that the stock had been mingled with other stock before this examination was made, and, on proof tending to show that this shipment passed en route into the control of the defendant, the Louisville and Nashville Eailroad Company, when in good condition, and was turned over at the point of destination by the Norfolk and Southern in a damaged condition and injured to such a degree that two of them died and one went blind and was sold at a nominal sum, we are of opinion that plaintiff was entitled to have his claim submitted to the jury on the issue as to defendants’ liability.

There is error in the judgment of nonsuit, and the same will be set aside.

Eeversed.  