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

(Filed 1 November, 1911.)

1. Carriers of Goods — Live Stock — Damages—Stipulated Notice— Knowledge of Agent — Liability of Carriers.

When by reason of the negligence of the carrier a shipment of horses is injured in transportation under its live-stock bill of lading, the carrier is liable in damages, notwithstanding the notice required by its bill of lading has not been ■ given in accordance with its terms, i. e., “the claim for such loss or damage shall be made in writing, verified by the affidavit of the shipper or his agent, and delivered to an authorized officer or agent of the carrier within five days from the time said stock is removed from the car, etc.,” if the proper agent of the defendant knew of the injury to the live stock-at the time they were being unloaded from the car.

2. Same — Evidence—Questions for Jury.

It is some evidence of notice to a carrier of the damaged condition of horses it had transported under its usual live-stock bill of lading, that its depot agent was standing in such position near the car that the horses would pass before him while being unloaded, and that they were covered with perspiration, were in a suffocated condition, very weak, and that instead of leading them in the usual, manner, they had to be taken by the tail and hip and steadied down the gangway to keep them from falling.

Appeal from Daniels, J., at May Term, 1911, of Alamaece.

Tbis is an action to recover damages for injury to stock transported by the defendant railroad.

*452The plaintiff offered evidence tending to prove that twenty-one borses and three mules were received by the defendant from a connecting common carrier, and that they were carried in an old stock car which had been worked over; that the ventilating windows and doors were closed >up tightly with slats and the car rendered almost air-tight, being without ventilation and unsuitable and unfit for the transportation of live stock; and that they were injured thereby while in possession of the defendant.

The bill of lading covering the shipment was introduced in evidence, and, among other things, it contained the following stipulations:

(1) No claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier or sued for in any court, by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to an authorized officer or agent of the said carrier within five days from the time said stock is removed from said car or ears; and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim is made in like manner, and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs.

(2) The said shipper or the consignee is to pay the freight charges thereon to the said carrier at the rate of $45 per carload, which is the lower published tariff rate, based upon the express condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employees or otherwise: “If horses or mules, not exceeding $100 each.”

*453lt was admitted tbat tbe plaintiff did not give to tbe defendant written notice of bis claim for damages; but be contended tbat tbis was unnecessary, as tbe agent of tbe defendant was present wben tbe borses and mules were unloaded, and saw tbem and knew of tbe injury to tbem.

Tbe following verdict was returned by tbe jury:

1. Was plaintiff’s stock injured by tbe negligence of tbe defendant company, as alleged in tbe complaint? Answer: Yes.

2. If so, wbat amount of damages bas tbe plaintiff sustained on account of said negligence and injury? Answer: $475.

3. Did tbe plaintiff comply witb tbe contract of shipment as to tbe giving of notice to defendant as to bis claim for damages ? Answer: No.

Judgment was entered upon tbe verdict in favor of tbe defendant, and tbe plaintiff excepted and appealed. •

W. II. Carroll for plaintiff.

Parker & Parker for defendant.

Alleh, J.

Tbe ruling of tbe learned judge, before wbom tbis case was tried, granting tbe motion of tbe defendant for judgment upon tbe verdict, is based upon tbe answer to tbe third issue, be being of opinion tbat tbe failure of tbe plaintiff to give notice to defendant of tbe injury to tbe stock is fatal to bis right of action.

He correctly held, in accordance witb our authorities, tbat tbe provision in tbe bill of lading requiring notice was valid, and tbat tbe failure to give written notice would not prevent a recovery by tbe plaintiff, if tbe agent of tbe defendant knew of tbe injury to tbe borses and mules at tbe time they were being unloaded. Selby v. R. R., 113 N. C., 588; Jones v. R. R., 148 N. C., 586; Austin v. R. R., 151 N. C., 137; Kime v. R. R., 153 N. C., 400.

He was, however, further of opinion, and so charged tbe jury, tbat there was no evidence “tbat tbe agent of tbe defendant saw or knew tbat it (tbe stock) was injured,” and directed tbe jury to answer tbe third issue “No,” if tbe evidence of tbe witness for tbe plaintiff was believed; and in tbis, we think, there was error.

*454The plaintiff was a witness in bis own behalf,, and testified that he was present when the stock was unloaded at Burlington, and that Mr. Ray, the depot agent, was also present; that the horses and mules were in a suffocated condition, and that the perspiration was on them like they had come out of a river; that they were out of breath and very weak, and that the boys who were helping to unload had to take them by the tails and hips and steady them; that they did not lead them as was usually done, but had to steady them and lead them down the gangway to keep them from falling; that Mr. Ray, the agent, was standing on the platform when they were moved away.

He was then asked the following questions:

Q. Was he in a position to see the horses? A. Yes, sir; good as I could.

Q. How close were the horses to Mr. Ray? A. They -had to come right by the side of him.

Q. How many feet ? A. Something like six or eight feet.

Q. That was when they came out? A. Yes, sir.

If this evidence is believed, the condition of the stock was such that it would necessarily attract attention, and the agent was so situated that he could scarcely fail to observe them.

In our opinion, this is some evidence that he saw the horses and mules, and knew they were injured.

The question is also raised on the record as to the effect of the valuation clause in the bill of lading, but as this is considered in another case at this term, and the facts bearing on this controversy may be more fully developed on another trial, we refrain from discussing it.

For the error pointed out, a new trial is ordered.

New trial.