#### W. C. NELSON v. ATLANTIC COAST LINE RAILROAD COMPANY and SOUTHERN EXPRESS COMPANY.

(Filed 23 September, 1914.)

Carriers of Goods — Express Companies — Failure to Transport— T rials — Evidence—Negligence.

In an action against an express company for damages arising-from the refusal of the defendant to transport a shipment tendered it at a small station where receipts for shipments were not issued, there was evidence tending to show that the railroad *548and express company bad the same local agent, and that the express company received freight for shipment there; the railroad baggage man on the train was also the agent of the express company; the porter'on the train usually helped to load express, but refused in this instance, and the shipment was too heavy to he handled by the express messenger alone; the station agent told the plaintiff, before he tendered the shipment, that it could go by express; the express messenger had his attention called to the shipment and requested the porter to assist him in loading it; the consignment thus tendered was beef, and remained at the station until it had spoiled and was worthless. Held, (1) a judgment of nonsuit upon the evidence as to the railroad company was properly rendered; (2) it was for the jury to determine, under conflicting evidence, whether the defendant express company through its authorized agents refused to accept the shipment.

Appeal by defendant from Bond, J., at June Term, 1914, of Edgecombe.

This is an action against tbe Atlantic Coast Line Railroad Company and tbe Southern Express Company to recover damages for failure to receive and transport certain beef, alleged to be tbe property of tbe plaintiff.

Tbe plaintiff testified as follows: “I am tbe plaintiff. On Y August last I was living bere in Tarboro. I was at tbat time in tbe wholesale beef business. About 1 August I received a letter from Mr. Hampton saying be bad a couple of cows to sell me, and I told bim when be bad them ready I would come down and kill them. He wrote me to come, tbat be bad tbe cattle up. I put them on tbe platform at tbe station and they failed to take them on board tbe train. Tbe night before I took them to tbe platform I went to see tbe agent. I bad tbe cattle shut up in bis lot and asked bim could I ship tbe beef from there by express, and be said I could; bis son would attend to it; tbat be was going to Rocky Mount; so I killed tbe beef and tbe agent’s son weighed it and I marked it all right and Mr. Fagan attended to it for me. Mr. Eagan was tbe agent at Darden. There was one beef going to Greenville and one going to Tarboro.

*549“When I carried tbe beef to tbe depot .we put it in tbe warehouse because it was raining. Mr. Fagan is tbe agent- of tbe railroad company and express company there.

“Mr. Fagan’s son was at tbe platform to help put tbe beef on tbe train. Just as soon as tbe train left I went down and asked tbe agent to give me a receipt for my beef, got tbe postmaster and another man to see tbe beef was in good shape and marked all right so I would be safe in getting my money. . . . That is tbe writing that tbe agent there gave me. They left tbe beef right there. Tbe beef was very large and tbe porter refused to come in and help pull tbe beef out, and tbe agent asked him to come in and help. They began to fuss and curse each other. I left tbe beef there in tbe agent’s bands and be said that be sold the bide. I have forgotten exactly tbe weight of tbe beef, but those are tbe claims that I filed at tbe time. One claim was for $40.30 and one for $15.90, making $56.20. I think that was a fair valuation for tbe beef. I was shipping tbe beef to be paid for after it was delivered. Tbe train passed there tbe next morning and never touched tbe beef. Tbe beef was all in bags. It was also properly marked.

“Mr. Fagan told me I could ship it from Darden. -I took it to tbe station to ship by express. I have shipped four beefs from Darden since. I don’t know whether there are books kept there or not. . -. . I bad never shipped beef from Darden by express before. My principal shipping' points were James-ville and Pinetown. ... If Mr. Fagan bad not told me I could ship it from Darden by express I would have carried tbe beef to Janesville.

“There is only one store at Darden. There is a warehouse there used by both companies and two waiting-rooms, and it is a nice little place.”

A witness for tbe plaintiff, O. B.'Fagan, testified as follows; “I live in Darden. On 7 August I was looking after tbe farm *550for my father while he was away. Mr. Nelson had seen my father about shipping the beef, and asked me if I would flag, the train and see about getting the beef off. I told him my father did not' have anything to do with the express, but I would be there and I would flag the train and tell them the beef was there. When the train passed I flagged it and told the baggage-master the beef was there. Captain Wooten did not know anything about it. The express messenger was in the car. I saw him. I told him there was some beef to go; he said ‘AH right,’ and told me to call the porter to help put it on, and he saw the beef. The porter just failed to load the beef. The beef was too heavy for him to handle and too heavy for me to get out, and I asked him to help me and he did not do it, so I did not drag it out and the porter began to curse. I could not load the beef. The beef was marked and properly wrapped up. I told Mr. Nelson that I would see to its being put on the train. I did not tell him I would help load it. I told him I would flag the train and tell the baggage-master that it was there; but it was my intention to help load it; I was acting for my father, and he looks after the freight. I did not look after the express. Express is sent from there, but the only representative is the express messenger on the train; when any one has any freight to send they just flag the train and help put the express on the train. There has been beef sent from there before, but I don’t know how many times. They had never refused to take on any beef from there before. The reason this was not taken was because the porter refused to help me put it on. Mr. Nelson put the beef in the warehouse because it was raining. The beef was not taken the next day. The beef stayed there and decayed. I finally sold the hide for $2.50. I have the money and intended turning it over to whoever it was decided it belonged to; I thought that I would save somebody that much. I have said before that beef had been shipped before from there.”

Cross-examination: “Mr. Nelson wanted to ship his beef by express. There had been beef shipped from there before by express. It was always carried out and put in the express car and received by the express messenger. I don’t know where he *551bills bis beef from. I only know tbe messenger bad received beef from there before. I told tbe express messenger tbat tbe beef was there, and I also told tbe porter. Tbe express messenger and tbe baggage-master are tbe same. Tbe express messenger was Mr. Edmnnson. There is an office there, but no books are kept there. No tickets are sold there, and my father just looks after tbe freight tbat is put off there. He does not issue any bills lading. I have never known him to sign any as agent.”

Eedirect examination: “They have warehouse and a platform at Darden. Tbe train stops there whenever it is flagged. There are two waiting-rooms there, but they do not sell any tickets there. Freight is shipped from there. I did give Mr. Nelson a paper-writing after the train left. It is a statement of the weight of.the beef' received. I gave him the paper showing that the beef, was brought to the station to be shipped, properly maiked. “Dabden, N. C., 1 August, 1913.

“Eeceived 451 pounds beef and 14 pounds hide from ~W. C. Nelson, Tarboro, N. 0.; 2 sacks, 141 pounds, Greenville, N. 0., H. Ooben. H. A. Eollings & Oo., 310 pounds, Tarboro, N. 0.

“(Signed) 0. C. Fagan, Agt.

“This is the paper I gave Mr. Nelson. The statement shows that the porter refused to take the beef on the train. I did not notify the express company or have any communication with them about the beef being there. I did not have any orders to send the beef out next day.”

There was evidence that the messenger for the express company was also baggage-master for the railroad company, and that the porter usually helped to load express on the car.

The conductor testified, among other things, “The porter usually helps load express at small stations,” and the express messenger testified: “I received express at Darden when it was put on the car. The shipper, with the assistance of the porter, puts the express in the ear. The porter usually helps.”

There was also evidence on the part of the defendants that Darden was a nonagency station and that neither the railroad *552nor the express company bad an agent there, and that C. C. Fagan was not the agent of either company.

At the conclusion of the evidence his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

J. Frank Liles for plaintiff.

F. 8. Spruill for defendants.

Allen, J.

The judgment of nonsuit in favor of the railroad company must be sustained.

The evidence of the plaintiff shows that he.intended to ship by express and not as freight, and there is nothing to show any delivery to the railroad company as carrier, or any purpose to make such delivery, and there is no evidence of negligence which would justify holding that company liable as warehouseman.

The evidence against the express company is, in our opinion, sufficient to be submitted to the jury.

The plaintiff testifies without any qualification that there is a warehouse at Darden used by both companies, and that C. C. Fagan is the agent of the railroad company and of the express company. He also testifies that he saw C. C. Eagan before he attempted to make delivery of the beef, and asked him if he could ship the beef from Darden by express, and that Fagan said he could, and it was also in evidence that the beef was delivered in the warehouse for the purpose of shipment, properly wrapped and marked.

This evidence is denied by the defendant, which raises an issue of fact to be determined by the jury, and which the judge could not decide as a matter of law.

If'this issue should be determined against the plaintiff, there is another aspect of the case which is proper for the consideration of a jury. It is not denied that Edmunson was the agent of the express company, and it is in evidence that the beef was in the warehouse where it was seen by Edmunson when the train stopped; that Edmunson was told that the beef was for shipment by express and he said “All right,” and that the porter would help load it, and that the beef was not actually de*553livered upon tbe car on account of tbe failure of tbe porter to belp. Edmunson was tbe agent of tbe express company and baggage-master for tbe railroad, and tbe porter usually helped to load express.

Tbis furnishes some evidence of acceptance of tbe shipment by tbe express messenger and that tbe porter was agent of both companies.

Tbe judgment of nonsuit is therefore affirmed so far as tbe railroad company is concerned and set aside as to tbe express company.

Affirmed as 'to tbe railroad company.

Beversed as to tbe express company.-