#### R. L. SMITH v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 1 October, 1913.)

1. Carriers of Goods — Bills of Lading — Contract of Carriage — Acceptance of Shipment — Liability.

. A common carrier of freight assumes the duty and responsibility of transporting and delivering the freight it accepts for that purpose, and it is not necessary that the contract of carriage should be evidenced by a bill of lading or other writing in order to subject the carrier to the payment of damages of that character in .an action brought for that purpose.

2. Carriers of Goods — Live Stock Bills of Lading — ‘Evidence.

It is necessary for a common carrier, relying upon a stipulation in its live-stock bill of lading limiting the value of the stock in event of recovery, to show that the shipment was made under this form of its bills of lading, and the mere fact that such a bill of lading is in the possession of the plaintiff, without its identification as being the one relied on, is insufficient.

3. Same — Interstate Commerce Commission — Classifications.

The classifications of the Interstate Commerce Commission of rates of freight on live stock is irrelevant when the carrier, relying upon a stipulation in its live-stock bill of lading, fails to show that the shipment was made under it.

4. Appeal and Error — Objections—Evidence—Prior Testimony.

Exceptions to the competency of evidence will not be sustained on appeal when the same witness has previously testified, without objection, to the same facts in another part of his examination.

*1445. Carriers of Goods — Live Stock — Damages—Evidence.

In an action to recover damages from a carrier for the negligent killing of a mule in a car-load shipment of live stock, evidence is competent that the mule was found dead at the destination of the shipment with its foot through the slats of the cattle car where a piece of the slat had been, for some time, broken off, which otherwise would not have permitted it; that this was the only place in the ear through which a mule could have gotten its foot; that the mule hadi apparently fallen down in this position and could not again get up.

Appeal by defendant from 0. II. Allen, J., at April Term, 1913, of Pitt.

This is an action to recover damages for injury to a horse and a mule, caused by the negligence of the defendant.

The following verdict was returned by the jury:

1. Was the mule mentioned in the complaint injured and killed by the negligence of the defendant; Answer: Yes.

2. If so, in what amount has the plaintiff been damaged thereby? Answer: $200.

3. Was the mare mentioned in the complaint injured by the negligence of the defendant ? . Answer: Yes.

4. If so, in what amount has the plaintiff been damaged thereby? Answer: $50.

5. Did the plaintiff file claims with the defendant for said injuries, as set out in the complaint? Answer: Yes.

Judgment was entered in favor of the plaintiff according to the verdict, and the defendant excepted and appealed.

W. L. Evans for plaintiff.

Harry Skinner for defendant.

AlleN, J.

The plaintiff did not introduce a bill of lading, but he offered evidence tending to prove that on 4 January, 1911, he purchased several horses and mules in Eichmond, which were delivered to a connecting line of railway, and were delivered to- him at Greenville by the defendant; that he- paid the freight to the defendant, and that one mule was dead and a horse injured, when the cars reached Greenville.

*145Tbe plaintiff further testified that be was present and saw tbe stock loaded on tbe cars in Richmond, and that no bill of lading was given to him. All of this evidence was objected to by'the defendant, upon tbe ground that tbe contract of carriage could not be proven by parol, and at the conclusion of tbe evidence there was a motion for judgment of nonsuit, tbe defendant contending that as no bill of lading bad been introduced, tbe plaintiff could not recover.

Tbe position of tbe defendant cannot be sustained.

In Hutchison on Carriers, sec. 118, tbe author says: “No receipt, bill of lading, or writing of any kind is required to subject tbe carrier to tbe duties and responsibilities of an insurer of tbe goods. As soon as they are delivered to him for present carriage, and nothing necessary to their being forwarded remains to be done by tbe owner, tbe law imposes upon him all tbe risk of their safe custody as well as tbe duty to carry as directed. He is regarded as exercising in some sort tbe functions of a public office, and tbe law is said to impose upon him bis duties and obligations upon this ground as well as upon tbe ground of tbe contract, and as soon as tbe delivery to him and bis acceptance are shown, tbe law imposes tbe duty and responsibility in virtue of bis public employment.”

Tbe Supreme Court of tbe United States ¡also said in Mobile and Mon. R. R. Co. v. Jurey, 111 U. S., 591: “No particular form or solemnity of execution is required for a contract of a common carrier to transport goods. It may be by parol, or it may be in writing;’in either case it is equally binding.” And our own Court declared in Berry v. R. R., 122 N. C., 1003: “Delivery of a bill of lading is not necessary to fix liability upon tbe defendant. Wells v. R. R., 51 N. C., 47.”

No evidence was offered identifying tbe paper in possession of tbe plaintiff, or tbe one held by tbe defendant, or connecting either with tbe shipment in controversy, and as no bill of lading containing' a valuation clause was in evidence, tbe classifications of tbe Interstate Commerce Commission were immaterial and were properly excluded.

Tbe plaintiff testified that no bill of lading was given to him, and be explained tbe possession of the paper, in form a bill of *146lading, by showing that after the defendant filed .an answer setting out certain stipulations, which it alleged were in the bill of lading under which the shipment was made, his counsel wrote to the party from whom the horses and mules were purchased in Richmond, asking for a form of bills for shipments of stock, for the purpose of comparison with the allegations in •the answer, and that the paper he had was the one sent him in compliance with his request.

The paper in possession of the defendant’s counsel -purported to be’ a copy of a bill of lading, but no evidence was offered showing when it was made, or otherwise explaining it.

The defendant also excepted to the admission of the following question and answer:

The plaintiff was asked, “Would it have been possible, from your observation, for that mule’s foot to have gone through the crack unless there had been a piece broken out ?”. He answered by saying that she could not have done so, in his opinion; that he noticed the car, and that that was the only place that a mule could have gotten its feet through; that the plank at that point had been split off and was an old break.

It is not disputed that the foot of the mule was through the crack, and it was favorable to the defendant to show that there was no other hole in the car.

It follows that the only part of the answer of the witness that was material is the statement, “that the plank at that point had been split off and was an old break.” This evidence was, in our opinion, competent, but if not, the defendant. could not avail itself of the exception, as the same witness testified to the same facts in another part of his examination, without objection.

He said: “When the shipment reached Greenville there was a mule dead in one car, and one of the horses was severely injured in another. The mule had her feet hanging in a crack of the car about waist high from the floor, and she had apparently fallen down on her back while in that position and could not get up. That the car was slatted with narrow cracks between the slats about 2 inches wide, but at the point where the mule’s *147feet were bung a piece bad been broken out, making tbe crack at that point mucb larger. Tbe slats of tbe car were about 2 inches wide, and at that point about balf of tbe slat bad been broken out, making an opening about'4 inches wide, and large enough for tbe mule’s feet to catch in. That be examined tbe car thoroughly, and that the break in tbe slat at tbe point mentioned bad tbe -appearance of having been done .for some time, as tbe broken slat was dirty and colored different from a new break.”

Tbe principles announced in Adams Express Co. v. Croninger, 227 U. S., and in other cases following it, 'are not involved in tbe decision of this case, as no bill of lading containing a valuation clause was in evidence.

Tbe special instructions requested, predicated on tbe presence of a bill of lading, and tbe materiality of tbe classifications of tbe Interstate Commerce Commission, were properly refused, and as .the exceptions to tbe charge are not considered in tbe brief, they are deemed to be abandoned. ¥e find

No error.