#### H. G. KIME v. SOUTHERN RAILWAY COMPANY.

(Filed 10 November, 1910.)

1. Nonsuit — Evidence—How Construed.

On a motion to nonsuit, tlie evidence of the plaintiff must be accepted as true, and considered in the light most favorable to him.

2. Carriers of Freight — Bill of Lading — Live Stock — Damages — Stipulation — Reasonable Notice.

The purpose of the stipulation in a live stock bill of lading requiring formal written notice to be given the carrier of his loss and intention to demand compensation before removing the stock from the carrier’s premises does not relieve the carrier of its liability for negligence, but is simply to give such notice as will enable it to protect itself from fraudulent or unjust claims.

3. Same — Exceptions.

The failure to give the carrier the formal written notice of claim for damage to stock through its negligence, shipped under and required by its live stock bill of lading, does not bar a recovery when it appears that the conductor had knowledge thereof while in transit; that the absence of the agent from the station at destination prevented the required notice from being given him, and the stock was removed some two hundred yards from the depot and there examined and inspected by the carrier’s inspector before they were intermingled with other live stock. Jones v. B. B.. 148 N. C., 580, cited and approved.

Apppal from W. J. Adams, J., at the May Term, 1910, of ALAMANCE.

The facts are sufficiently stated in the opinion of the Court.

W. 11. Carroll for plaintiff.

Parker & Parker and W. B. Rodman for defendant.

*399Clark, 0. J.

This was an action for damages to a-earload of horses while in'transit from Richmond, Va., to Burlington, N. C., caused by the negligence of the defendant. The jury found that the horses had been injured by the negligence of the defendant, and assessed the damages at $300. The plaintiff admits in his evidence that on the afternoon when he unloaded the said, horses at Burlington, N. C., he did not give any notice to the agent of the defendant, informing him of said injuries or of his intention of making a claim for said damages. His excuse for not doing so was that the agent had left the depot, and could not be found, and the agent admits that he was not at the depot when the horses were unloaded. The evidence is uneontradicted that said stock was removed from the premises of the defendant to the stables of the plaintiff, about 200 yards away, and there kept separate and apart from other stock until both the agent at Burlington and the stock inspector for the defendant company had ample opportunity to examine and both of them did actually examine the injured stock. The conductor of the train which brought the carload of horses to Burlington admitted that he had notice of the injuries before the horses were unloaded, that he saw one horse with his legs through the slats of the car, and stopped the train at request of plaintiff, so that the leg could be extricated, but made no attempt to further ascertain the extent of the injuries sustained by said horses.

The first two assignments of error are to the failure of the court to nonsuit the plaintiff. It is well settled that on a motion to nonsuit, the evidence of the plaintiff must be accepted as true, and considered in the light most favorable to him. Hopkins v. R. R., 131 N. C., 463; Snyder v. Newell, 132 N. C., 614. There was plenary evidence to submit the case to the jury upon the first issue whether the stock were injured by the negligence of the defendant.

The case turns upon the other two assignments of error which raise the question whether the failure of the plaintiff to give formal written notice of his loss and intention to demand compensation before removing the stock from defendant’s premises is an absolute bar to his recovery, if otherwise entitled. The object of such stipulation is not to relieve the carrier of its lia*400bility for negligence, bnt simply to give sucb notice as will enable it by proper investigation to protect itself froln fraudulent or unjust claims. Hinkle v. R. R., 126 N. C., 939. Tbe defendant does not claim tbat any disadvantage bas come to it for lack of sucb notice, for it bad ample opportunity to make full investigation, and in fact did make it before tbe stock was intermingled witb tbe other stock. Besides, tbe notice can be given orally as well as in writing. Tbe conductor bad sucb notice before tbe stock was unloaded. It was tbe defendant’s own fault tbat tbe agent was not at tbe depot wben tbe stock was unloaded, and notice botb oral and written was given bim as soon as be could be found, and before tbe stock were intermingled witb tbe other stock.

It was held in Wood v. R. R., 118 N. C., 1063, tbat sucb stipulations “are conditions in tbe nature of estoppels, and wben enforced, operate to prevent tbe enforcement of tbe obligations of tbe contract. Such restrictions, wben reasonable, will be sustained. But as they are restrictions upon tbe common law rights of tbe obligations of common carriers, they are not favored by tbe law.” To same purport Lawson Carriers, 114, 115.

Here indeed tbe objection cannot be raised of want of notice because tbe horses were injured while in tbe custody of tbe defendant, which bad full notice thereof, through its conductor, and tbe complaint to bim of tbe plaintiff before tbe horses were unloaded. Jones v. R. R., 148 N. C., 587; Breeding Asso. v. R. R., 152 N. C., 345.

We fully endorse tbe ruling in Austin v. R. R., 151 N. C., 137, tbat a stipulation in a bill of lading requiring notice of a claim for damages to be given tbe carrier before tbe live Stock is removed or intermingled witb other live stock, is a reasonable regulation to protect carriers against false or unjust claims, by affording them an opportunity for examination An exception to such stipulation was recognized in Jones v. R. R., 148 N. C., 580, on tbe facts of tbat case. Tbe facts in this case are still stronger, for here tbe company bad notice through its conductor of tbe injuries before unloading; notice could not be given to tbe agent at tbe time because of bis absence; tbe stock were removed only 200 yards, and notice was given to tbe agent *401as soon as be could be found, and tbe stock were examined by bim and tbe stock inspector before tbey were intermingled witb other live stock.

No error.