
    AUTY BALDWIN v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 3 November, 1915.)
    1. Carriers of Goods — live Stock — Bills of Lading — Damages—Written Notice —Waiver.
    Stipulations in bills of lading covering shipments of live stock, requiring written notice of claim for damages to be given before the stock is removed from the possession of the carrier, are valid; but the requirement that the notice shall be in writing is waived upon proof of the carrier’s knowledge of the injury; as, in this case, where the consignee called the attention of the carrier’s agent at the point of destination to the damage done, when the stock in the carrier’s possession was being unloaded, and paid the freight and took them away under an agreement that the matter should later be taken up between them.
    2. Same — Discrimination.
    The rule that the carrier’s knowledge of damages done to a shipment of live stock while in its possession waives the stipulated requirement of its bill of lading, that written notice thereof be given to the carrier before taking the stock from its possession, applies alike to all carriers and persons dealing with them, and is not a discrimination against or in favor of any one.
    Appeal by defendant from Justice, J., at the April Term, 1915, of Columbus.
    Action to recover damages for injury to a carload of live stock skipped from Atlanta, Ga., to Mount Tabor, N. C., on tke line of tke defendant.
    Tkere was evidence on tke part of tke plaintiff tending to prove tkat tke stock was received in a damaged condition, wkiek resulted from tke negligence of tke defendant, and as to tke amount of tke damage. Tke defendant relied upon tke following stipulations in tke bill of lading, under wkiek tke skipment was made, as a defense:
    “Tkat as a condition precedent to any rigkt to recover any damages for loss or injury to said live stock, notice in writing of tke claim tkerefor skall be given to tke agent of tke carrier actually delivering said live stock wkerever suck delivery may be made, and suck notice skall be so given before said live stock is removed or is intermingled witk other live stock.
    “It is agreed tkat tkis contract contains tke entire bargain between tke skipper and tke company, and tkat no conversation between owners and attendants of tke live stock skipped kereunder and representatives of tke company skall alter, vary, add to said contract, or be valid.”
    Tke plaintifE did not file a written notice of kis claim, but ke testified, among other things, as follows:
    “I went to tke agent and called kis attention to tke fact at tkis time tkat they were injured when I unloaded them. I notified tke agent when ke unloaded tke freight. We went down to tke stock pen. They were in a close place and I could not examine them, but I called kis attention to bair being knocked off and told bim they were in bad shape, and be told me to take them down to the bam and examine them, and I came back and paid the freight and feed bill and called his attention to the fact that one or two of these mules were stove np and had had but one feed, and we talked about it, and he told me to do the best I could. I paid him the freight and one feed bill, and went on till, the next day, I called on him in regard to finding about damages.”
    At the conclusion of the evidence the defendant moved for judgment of nonsuit because a written notice of the claim for damagés had not been filed. The motion was denied and the defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant appealed.
    
      McBackan & Greer for plaintiff.
    
    
      Davis & Davis, Schullcen, Toon & Schulken, and, W. A. Towns for defendant.
    
   AlleN, J.

Stipulations in bills of lading, covering shipments of live stock, requiring written notice of the claim for damages to be given before the stock is removed from the possession of the carrier, are valid (Selby v. R. R., 113 N. C., 588; Austin v. R. R., 151 N. C., 137), but the requirement that the notice shall be in writing is waived upon proof of actual knowledge of the injury. Kime v. R. R., 153 N. C., 398; Kime v. R. R., 156 N. C., 451; Kime v. R. R., 160 N. C., 464; Wilkins v. R. R., 160 N. C., 58.

These decisions, the result of mature consideration, were rendered upon interstate shipments and after the enactment of the Elkins Act of 1903, which the defendant contends changes the rule, and we are not inclined to depart from them, at least until there is an authoritative construction of the Federal Act to the contrary by the Supreme Court of the United States, which would be binding on us.

The two eases from the Circuit Court of Appeals (Kidwell v. Oregon, 208 Fed., 1; Clegg v. R. R., 203 Fed., 971) are entitled to high consideration, emanating as they do from courts of learning and ability, but while they discuss the right to waive the stipulation, neither deals with the effect of knowledge brought home to the carrier before the removal of the stock.

The case of R. R. v. Kirby, 225 U. S., 155, which is also relied on by the defendant, presents an entirely different question. In that ease a special contract giving an advantage to a particular shipper at the regular rate charged to all shippers was held to be a preference.

The rule permitting knowledge to supply the 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 skippers, and it is ■enforced against a carrier wbo bas bad possession of tbe property with •every opportunity to know tbe extent of tbe injury and its cause.

There are many well-considered cases tbat bold tbe stipulation to be void because unreasonable, and particularly when tbe notice is required to be. given before tbe removal of tbe stock; but we bave not gone tbis far.

Tbe judgment of nonsuit was properly overruled.

No error.  