#### GEORGE H. DUVALL and J. H. BELL v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 14 October, 1914.)

Carriers of Goods — Bills of Lading — Stipulations—Live Stock — Written Notice — Waiver—Evidence.

A stipulation in a bill of lading given by a common carrier for a shipment of live stock, requiring that written notice of claim for damages be given the delivering carrier before the live stock is removed or intermingled with other live stock, is a reasonable one to afford the carrier an opportunity of such examination as will enable it to protect itself from false or unjust claims, and will be upheld as a condition precedent to the right of recovery. And the mere fact that the claimant verbally notified some one employed by the carrier as a laborer, in the absence of the agent, of an injury to one of a car-load of mules, which had been transported by the carrier, before accepting and taking the mule away and intermingling it with other live stock, is neither a compliance with the terms of the stipulation by the claimant nor a waiver thereof on the part of the carrier. Jones’ case, 148 N. 0., 580, and Southerland’s case, 158 N. O., 327, cited and distinguished.

Appeal by defendant from Whedbee, J., at December Term, 1913, of J* ONES.

This is a civil action to recover damages for injury to a mule, caused by the negligence of the defendant, the Norfolk Southern Railway. The jury found for the plaintiff and assessed the damages at $100, from which judgment the defendant appealed.

Thomas B. Warren for plaintiff.

Moore & Dunn for defendant.

BeowN, J.

The evidence in this case tends to prove that the plaintiffs were owners of a certain mule, shipped to them over the defendant’s road, 8 March, 1911, under a bill of lading containing the following clause: “That as a condition precedent to any right to recover any loss or damage to any live stock, notice shall be given in writing the agent of carrier actually delivering said live stock wherever said delivery may be made; such notice shall be so given within five days from said delivery and before said live stock shall have been intermingled with other live stock.”

It is contended by the defendant that the animal was removed at once after arrival at New Bern, without giving any notice, as required in the bill of lading. The evidence tends to prove that when the stock was removed from the railroad station, they were carried to the stables of J. A. Jones, the consignee named in the bill of lading.

It seems that the mule had been purchased by the plaintiff Duvall in Richmond and shipped with other stock under the bill of lading to Jones. *25Tbe plaintiff Duvall received tbe mule at Jones’ stables and carried it to Pollocksville, a distance of 14 miles, and delivered it to J. H. Bell. Both Duvall and Bell testified that on tbe way to Pollocksville tbe mule limped a little, but tbey paid no attention to tbe same, as they did not tbink tbe lameness amounted to anything. In several weeks tbe injured leg turned out to be serious, and tbe mule died.

It is admitted tbat no written or other claim was made on tbe defendant until 12 April, and tbat tbe affidavit as'to tbe injury to tbe mule was not made until May, 1911. Tbe plaintiff Duvall further testified tbat be saw tbe mule at Jones’ stables before being driven to Pollocksville, and be did not call tbe attention of tbe agent of tbe defendant to any alleged injury.

It is well settled tbat a stipulation in a bill of lading, given by a common carrier for a shipment of live stock, requiring tbat written notice of claim for damages be given tbe delivering carrier before tbe live stock is removed or intermingled with other live stock, is a condition precedent to recovery, being merely a provision to protect tbe carrier against a false or unjust claim by affording it an opportunity for examination, is reasonable, and will be upheld.

Tbe validity of such provision was affirmed in Selby v. R. R., 113 N. C., 594. It has been fully discussed, elaborated, and enforced in Austin v. R. R., 151 N. C., 137, and in Kime v. R. R., 153 N. C., 400, in which last cáse tbe present Chief Justice, speaking for tbe Court, says:. “We fully indorse 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 be given tbe carrier before tbe live stock is removed or intermingled with other stock is a reasonable regulation to protect carriers against false or unjust claims by affording it an opportunity for examination.”

But tbe plaintiff contends tbat there was a waiver, if not a substantial compliance, with, tbe clause in tbe bill of lading. He bases this contention upon tbe testimony of one Brock, who received tbe stock for tbe consignee, Jones. Brock testifies tbat tbe agent of tbe Norfolk Southern Railroad Company was not personally present at tbe time tbe stock was unloaded, and tbat Brock “called the attention of a negro, working for tbe said railroad company, to tbe condition of tbe mule.”

Tbe plaintiff relies upon the case of Jones v. R. R., 148 N. C., 580. Tbe validity of such a clause in tbe bill of lading was fully recognized in tbat case, but tbe decision was based upon tbe fact, while tbe stock bad been removed to a stable, it was still in tbe possession of tbe railroad company, as its agent bad caused tbe stock to be removed to tbe stable, and where examination of tbe stock was made by tbe agent.

Nor is tbe case of Southerland v. R. R., 158 N. C., 327, any authority for tbe plaintiff’s position. In tbat case notice was given and tbe injury *26called to tbe attention of one wbo customarily acted for tbe railroad company in delivering stock. In tbat case it is said: “It is true, tbe notice was given to one Lambert, wbo was in charge of tbe stock yards, but there is testimony tending to prove tbat be superintended tbe unloading of cattle for tbe railroads, that be was always present at such unloading, and worked for tbe railroad company in tbat way and looked after all tbe cattle for tbe railroad when they came in. From tbe evidence, we think tbe jury was fully warranted in inferring tbat Lambert was agent of tbe railroad in receiving and unloading cattle, and tbat being so, notice to him would be in all respects a compliance with tbe contract.”

In tbe case at bar no notice whatever was given any agent of tbe defendant. Tbe fact tbat Brock called tbe attention of some negro, wbo happened to be working for tbe .defendant, to tbe condition of tbe mule, would certainly not be notice to tbe defendant.

Tbe motion to nonsuit should have been allowed. It is so ordered.

Eeversed.