#### TAYLOR v. NORFOLK AND CAROLINA RAILROAD COMPANY.

(Filed September 23, 1902.)

NEGLIGENCE — Logs and Logging — Railroads.

There is not sufficient evidence in this case to be submitted to tbe jury on the question of the negligence of the railroad in breaking a raft of logs which had lodged against its bridge.

ActioN by W. P. Taylor against tlie Norfolk and Carolina Railroad, beard by Judge George II. Brown and a jury, at Spring Term, 1902, of tbe Superior Court of Hertford County. From a judgment for tbe plaintiff, tbe defendant appealed.

L. L. Smith, for the plaintiff.

George Cowper, for the defendant.

Montgo.mery, J.

A large raft of logs was broken loose from its moorings by a high freshet in Chowan River, and was driven down against the defendant’s railroad bridge across the river, lying broadside against the piling which supported the bridge. The defendant, through its agents and employees, broke up the raft, by means of which the logs passed under the bridge and many of them were lost. It was admitted, and proved also, that the safety of the bridge was imperiled and endangered by the lodgment of the raft.

This action was brought to recover of the defendant damages for the loss of the logs and the gear which held together the raft. The allegation of the complaint on that point was “that the defendant company, by its agents and employees, wilfully, negligently, wantonly and wrongfully broke the said raft in pieces and threw the rafting gear into the river, and turned the said logs adrift in the current, and the said gear sunk to the bottom of the river and the said logs floated down the river and were lost.” The plaintiff also alleged that “if it was safe and prudent on the part of the defend*51ant’s employees to remove the raft, it was not necessary, in order to save the bridge, to throw the gear to the bottom of the river, or to turn the logs adrift in the current”; and the fourth allegation is in these words: “That hy the said wilful, wanton and wrongful negligence on the part of the defendant’s agents and employees, the said gear and logs to the value of $250 were lost, to the plaintiff’s damage.”

In passing, it is curious to observe that the plaintiff got a verdict for 13 cents less than the amount demanded in the complaint, and we have searched in vain for any evidence upon which the deduction was made.

The plain meaning and intent of the complaint are that the plaintiff’s damages' arose from the destruction of the raft, and that that act itself, although done to save the defendant’s bridge, as it was shown to have been, was wanton and wilful and negligent. There is no charge in the complaint that the defendant was negligent in not saving the logs after they were broken loose from the raft and turned adrift. The plaintiff’s loss was declared to have been brought about by the said wilful, wanton negligence on the part of the defendant’s agents; and the said wilful, wanton and wrongful negligence mentioned in the complaint was the breaking the raft into pieces.

The case seems to have been tried altogether upon the theory of the plaintiff as set out in his complaint. It seems to us that the only issue that ought to have been submitted on the complaint and answer was, “Did the defendant’s agents negligently and wantonly and wrongfully destroy the plaintiff’s property, as alleged in the complaint?” And in looking into the case we find that his Honor took that view of the matter and submitted one issue only, and that in the very language of the above.

In the course of the trial, however, it having been admitted and proved that it was necessary for the safety of the bridge *52to break up tbe raft, and tbat tbat act was not wanton or wilful or negligent, tbe question arose as to tbe duty of tbe defendant in connection witb tbe logs after they floated under tbe bridge and into tbe stream below. If tbat bad been an issue, tbe greater part of bis Honor’s charge on tbat subject was correct; but we tbink be was wrong when be said to tbe jury, “If tbe defendant could save any of tbe logs by exercising due care witb tbe means wbicb it tben actually bad at its command, it was its duty to do- so,” without further instructing them tbat tbat would not have been tbe defendant’s duty if tbe means at band were not sufficient to- save both tbe bridge- and the logs. Certainly tbe first duty of tbe defendant was to use all available means to secure tbe bridge for tbe benefit of tbe traveling public and tbe protection of its own property. But, in any view of tbe case, we tbink there was no sufficient evidence to be submitted to tbe jury on tbe question of tbe defendant’s conduct in reference to tbe logs after tbe raft was broken up-. Tbe only scintilla, if tbat, came from tbe son .of tbe plaintiff, who- said: “Defendant made no effort to save any of tbe logs or gear; plenty of men to do it there; there were between 30 and 40 men.” Tbat was only an opinion, for be mentioned no appliances, nor other means wbicb could be put to use by tbe men in an attempt to save the logs. This witness says tbat tbe boss, while engaged in breaking up tbe raft (on a Sunday), in a high freshet of rolling waters and getting higher, in peril of his life, and fighting to save a valuable railroad bridge, when told by tbe witness not to break up bis raft, tbat bis father would be there soon witb a tug, exclaimed “damn tbe logs” ; and tbat was argued to be evidence of wilful and wanton destruction of tbe property. We hardly think so. Tbe wonder is be bad not said more.

W. H. Pyland, Jr., a witness for the plaintiff, said: “Tbe defendant’s agent made no effort to save tbe logs; they could *53-have done so if they had had boats below to catch the logs as they cut them loose.”

Pyland, another witness for the plaintiff, said: “The raft was lengthwise against the gridge, and greatly endangered it. If the railroad people had had boats enough ready prepared, they might hare saved some of the logs. They had two skiffs, but I did not see any other boats there.”

And another witness, Stain, for the plaintiff said that “More logs could have been saved by taking two boats on the lower side of the bridge, taking the logs up separately as fast as they came through.”

His Honor properly told the jury that the defendant was not required by law to anticipate that a raft would break loose and come against its bridge, and it was not required to have on hand boats sufficient to save the logs. Now, in connection with that part of the charge where the plaintiff’s evidence is carefully examined, it will be seen to afford no grounds upon which to impute negligence to the defendant in respect to its duty to save the logs or any part of them. Plaintiff’s evidence does not tend to show that there was a boat or any other appliance available with which to make an attempt to save the logs. There was, however, on the part of the defendant ample evidence going to prove that there were no facilities or appliances at hand and which could be used to save the logs. N. Y. Robinson said: “The logs doubled and piled on each other, and reaching down near the bottom row, were pressing against the bridge with such strength and dangerous force as to require immediate relief. We had only two boats, and it was impossible for our men to' save the logs and at the same time bestow reasonable attention upon the safety of the bridge.” And Culpepper testified that the only means of saving the logs after they had passed through the bridge was by boats, and these the railroad company did not have.

*54Wbat we bave said does not apply to tbe gear, for it seems there was some evidence tending to show that it was wantonly and negligently destroyed in breaking np tbe raft.

New Trial.