#### A. J. LUCAS and W. J. LEWIS v. NORFOLK SOUTHERN RAILWAY COMPANY et al.

(Filed 11 March, 1914.)

1. Carriers of Goods — Unsuitable Cars — Connecting Carriers — Negligence.

A carrier should use cars suitable for the transportation of goods delivered to it, and its failure to do so will subject it to liability for the damages the goods' sustain in consequence; and ■ the connecting carrier will also be liable for the damages to the goods thus caused while they are being transported over its own line.

2. Same — Trials—Nonsuit—Appeal and Error — Harmless Error.

A carrier furnished an unsuitable car for the shipment of merchandise, and the connecting carrier received this ear with its contents and forwarded it to its destination, where, upon delivery the goods were found by the consignee to be in bad condition. In an action to recover for the damage alleged thus negligently to have been caused to the shipment, it is held that a judgment as of nonsuit upon the evidence rendered in favor of the delivering carrier is only to the prejudice of the plaintiff, and if erroneous was harmless as to the initial carrier appealing therefrom.

*2653. Carriers of Goods — Unsuitable Cars — Trials — Negligence—Evidence.

Where a consignor makes a shipment of potatoes to his own &rder, which arrives at destination in a bad or damaged condition, and there is evidence that the carrier loaded them in an nnventilated car, recently used for transporting fertilizer, with some of the fertilizer remaining therein, and testimony by witnesses qualified to speak from their own experience and observation that potatoes so shipped would rot or spoil in the time required for their transportation, it is sufficient to be submitted to the jury upon the question of the liability of the defendant for the damages caused by its negligent use of an unsuitable car.

4. Appeal and Error — Joint Defendants — Evidence as to One — Trials —Instructions. '

Where in an action against two defendants evidence is prop- „ erly admitted as to one of them, objected to by the other, and the jury properly instructed as to which defendant it should be considered, it.will be presumed on appeal that the jury had sufficient intelligence and honesty to understand and apply the instruction, and no error will be found.

5. Trials — Instructions—Contentions—Appeal and Error.

Where a part of a charge of the court to the jury, excepted to, does not purport to be a statement of the law, but only the contentions of the adversary party, it will not be held for error on appeal.

Appeal by defendant from Daniels, J., at January Term, 1914, of CIbaveN.

This is an action, to recover damages for injury to a shipment of potatoes from New Bern, N. 0., to Atlanta, Ga., under a bill of lading to the order of the plaintiff.

Evidence was introduced tending to prove that the potatoes were delivered in good condition to the defendant Norfolk Southern Railroad Company at New Bern on 10 April, 1912; that said defendant selected the car in which the potatoes were shipped; that the shipment was transported promptly by said defendant, and delivered to the defendant the Southern Railway Company, a connecting carrier, at Goldsboro, in apparent good condition^ and was so receipted for by said Southern Railway Company;, that the Southern Railway Company promptly transported the shipment from Goldsboro to Atlanta; that the *266car was sealed wben it left New Bern and tbe seal was unbroken wben it reached Atlanta; tbat tbe potatoes were in a decayed condition wben tbey reached Atlantatbat this decayed condition was because tbe car in which tbe shipment was made was unsuitable, in tbat it bad been used for carrying fertilizer, and tbe ventilators were closed. There was also evidence’ to tbe contrary.

During tbe trial tbe court admitted in evidence a letter written by an agent of tbe Southern Railway Company, and tbe Norfolk Southern Railroad Company excepted.

Tbe court instructed tbe jury at tbe time tbe letter was introduced tbat it could not be considered against tbe Norfolk Southern Railroad Company, and at tbe conclusion of tbe evidence repeated tbe instruction, and withdrew this evidence from tbe jury.

When tbe evidence was closed tbe court sustained tbe motion of tbe Southern Railway for judgment of nonsuit, and tbe Norfolk Southern Railroad Company excepted.

The defendant tbe Norfolk Southern Railroad Company moved for judgment of nonsuit, which was denied, and it excepted.

His Honor charged tbe jury, -among other things:

. “1. Now, tbe allegation of negligence made by tbe plaintiffs in this case is tbat tbey delivered this shipment to tbe defendant Norfolk Southern Railroad, to be sent by it to Atlanta, G-a., and tbat tbe defendant owed them tbe duty of ’ exercising ordinary care to provide a suitable car in a suitable condition to carry tbe goods of this sort with reasonable safety to tbe shipment from tbe point at which tbey were delivered to tbe defendant to their destination, and tbat tbe defendant failed in tbat duty in tbat it furnished a car in which some fertilizer bad been shipped previously and in which some fertilizer still remained, and tbat this car was not ventilated; tbat tbe vents were all closed, and tbat by reason of this negligence, this condition of tbe car, tbe potatoes were injured and arrived at tbe destination in bad condition.” Tbe defendant excepted.

*267“2. The plaintiff relies upon tbe testimony you have heard read from some depositions; the agent of the consignee was one who testified that the morning after the arrival of the shipment at Atlanta he went in the car and examined the potatoes, and found them in such bad condition that he refused to take them; thereupon the Southern Railway Company disposed of them. Then the testimony of another witness to the effect that he noticed in the car remains of some fertilizer- in the bottom of the ear; and the testimony of another witness that when the car arrived in Atlanta the vents were all closed.” The defendant excepted.

The only question submitted to the jury was whether the defendant furnished a suitable car, and, if it failed to do so, was this the real cause of the injury?

There was a verdict and judgment in favor of the plaintiff, and the Norfolk Southern Railroad Company appealed.

B. A. Nunn for plaintiff.

Moore & Dunn for defendant.

AlueN, J.,

after stating the case: -It is the duty of the initial' carrier to furnish cars suitable for the transportation of goods delivered to it, and if it fails to perform this duty, it will be liable for any subsequent damage arising from the defective condition of the car, although such damage develops on the line of a connecting carrier. Hutchison on Carriers, vol. 2, see. 499; Forrester v. R. R., 147 N. C., 554.

When the connecting carrier accepts the shipment, it adopts the car or vehicle provided by. the initial carrier, and is responsible for any damages caused by its unfitness for the carriage of the goods. Hutchison on Carriers, vol. 2, sec. 501; Wallingford v. R. R., 26 S. C., 258; Shea v. R. R., 66 Minn., 102; St. Louis R. R. v. Carlisle, 78 S. W. R., 553.

If, therefore, there is any evidence that the car was unsuitable at the time it was furnished by the initial carrier, and that it remained so, both the initial and the connecting carrier would be liable to the plaintiff, and the motion for judgment of non-suit ought to have been denied as to both, and we think there is such evidence.

*268The car was sealed at New Bern, and the seals had not been broken when it reached Atlanta. The vents were closed at Atlanta, according to the evidence of one witness, and no witness for the defendant testified that the vents were open when the car left New Bern. They do say the car was in good condition, and then admit that they do not remember this car.

A witness for the iffaintiff testified: “The signs in the car indicated'that it had been loaded'with acid or fertilizer; the odor indicated this also. I don’t remember whether or not the car had vents. I have been a dealer in potatoes five years. From my observation and experience the effect on sweet potatoes being shut up in a car without ventilation, in which there were remains of a shipment of fertilizers, would be that the potatoes would heat and rot very quickly. They would deteriorate more quickly than if the car had been clean and well ventilated.”

Another witness testified: “The first time I saw the car it was on Madison Avenue team track; the seals were intact, the vents were closed; there was no odor that I could detect with the vents and doors closed. After the vents were opened and they went into the car, there was some odor,” and one of the plaintiffs, that “the effect -upon a car-load of potatoes, if put in a car that had been previously loaded with fertilizer with the openings and vents shut up tight and shipped across the country from New Bern to Atlanta, would be to ruin them entirely. They would be no good. A No. 1 hog would not eat them.”

It follows necessarily, as there is evidence that the car was unsuitable, that the motion for judgment of nonsuit ought to have been denied as to both defendants, hut the error in allowing it as to the Southern Railway Company is prejudicial to the plaintiffs, who do not appeal, and not to the codefendant..

If the liability of the Norfolk Southern Railroad Company was secondary, there would be ground for its complaint, but if liable at all, it is because it furnished an unsuitable car, sealed it, and delivered it in apparent good condition to the Southern Railway Company, and its act was the primary and originating cause of the injury. Gregg v. Wilmington, 155 N. C., 22.

*269Tbe letter, wbicb was objected to by tbe defendant, was only admitted against tbe Southern Railway Company, and bis Honor was careful to instruct tbe jury twice.that they should not Consider it against tbe present defendant, and withdrew it from tbe jury.

We must assume that tbe jury were sufficiently intelligent to understand tbe instruction and honest enough to follow it. Cooper v. R. R., 163 N. C., 150.

Tbe exceptions to tbe charge cannot be sustained. Tbe first part of tbe charge excepted to does not purport to be a statement of tbe law, but of tbe allegations of tbe plaintiff; but if treated as determining tbe ground of liability, it is supported by tbe authorities before referred to.

Tbe defendant, in its brief, does not complain that tbe evidence was not correctly recited in tbe second part of tbe charge excepted to, and we see nothing in it that would justify a reversal of tbe judgment.

No error.