#### E. COPPERSMITH v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 13 September, 1922.)

1. Carriers of Freight — Railroads—Damages.

Where a railroad company has received for shipment a lot of “log chains,” and has negligently failed to deliver a part of them, and the consignee is under contract with third parties to do certain work for the consignor with them, and had promised the latter to return them, or their value if lost, after the work had been done: Held, the carrier is » responsible in damages to the consignee for the loss of the chains.

2. Same — Negligence — Consequential Damages — Notice—Instructions— Special Circumstances.

Where the railroad company is liable in damages for such consignee’s loss caused by its negligence, and the consignee also sues for consequential damages arising from an additional expense or a particular loss caused by being able to use only a part of the shipment of “log chains,” in performing his contract with the third parties, it is reversible error for the trial judge to submit only one issue as to damages, and charge the jury, in effect, that the carrier would be liable for the consequential damages, if sustained by the plaintiff and caused by the carrier’s negligence without more.

3. Carriers of Goods — Railroads—Negligence—Contracts—Special Damages — Burden of Proof.

Where the consignee sues the railroad company for the value of certain “log chains” lost by the negligence of the defendant, and as consequential or additional damages, for the extra cost of performing a contract he had made with others, as resulting from this loss, it is required that the plaintiff show that the defendant had express notice of the particular use for which the chains were required; or notice implied from the nature of the shipment or the circumstances indicating their use, which does not appear under the facts of this case.

Appeal by defendant from Lyon, J., at May Special Term, 1922, of PasquotaNic.

This action was brought to recover the value of thirteen “log chains” shipped by J. A. Reynolds & Brothers from Norfolk, Va., over the defendant’s line of railway, to plaintiff at Elizabeth City, N. C. Nine*27teen of the log chains were delivered to plaintiff at Elizabeth City, but the defendant failed to deliver the other thirteen chains, and for them the suit was broug'ht.

Plaintiff alleged, and there was evidence to show, that in consequence of the failure to deliver the thirteen chains, he had to pay 25 cents more for each piling on the contract he had with others for hauling and rafting the pilings, there being 400 and odd of such pilings. Plaintiff was conducting a logging operation in Pasquotank County, shipping the logs, when rafted, to Reynolds Pros., Norfolk, Virginia, the j>urchasers thereof, who furnished the gear for rafting the logs. This gear was shipped only when needed, and when so shipped was charged to plaintiff, who, in turn, was given credit for such gear as was returned — this being the custom in such operations. In August, 1920, Reynolds Bros, shipped to plaintiff a certain lot of gear, including 32 log chains of the value of $15 each. The plaintiff, upon inquiry, having been informed that the gear was at defendant’s station in Elizabeth City, went to said station in a truck for the purpose of receiving said gear. At this time there was delivered to plaintiff 19 of the log chains aforesaid, together with certain other gear, composing the shipment — leaving 13 log chains, presumably, at the station, which plaintiff was unable to take away at that time. The gear was delivered to plaintiff by a colored man, and plaintiff was required to sign a receipt calling for 32 log chains. On the next day a son of one of the plaintiffs was sent back for the other 13 chains, and was told at the station by the colored man to go out to the pile of gear and get 13 chains; that the sun was so hot that he was not going to bother with it; and the boy need not look particularly for the chains, if any, marked to plaintiffs, but he could take- the first 13 log chains he found — -“that chains were chains.” The boy thereupon selected 13 log chains and carried them home, where it was discovered that they were marked, not to plaintiffs, but to one D. P. White, to whom they belonged, and who, on the same day, called at plaintiff’s place of business for the chains and took the same away. One of the plaintiffs then returned to defendant’s station and reported the occurrence to Mr. Johnson, defendant’s agent, who told the plaintiff that they would make the loss good. The loss was never- made good, and plaintiffs were compelled to pay to Reynolds Bros. $195, representing the value of the 13 log chains not returned. In the meantime, by reason of the nondelivery of the chains, the plaintiffs were put to an additional expense, representing an additional cost of 25 cents each in rafting the logs.

The court charged the jury that if defendant negligently failed to deliver the chains, and plaintiff was compelled to pay Reynolds Bros, for them, he would be entitled to recover the fair and reasonable value *28of tbe chains, and if tbe plaintiff was compelled to pay an additional amount, in addition to tbat fixed by plaintiff’s contract witb tbe person wbo was banding tbe rafting for bim, be would be entitled to recover tbat amount; but, if tbe jury did not so find, be could not recover tbe additional amount.

It appeared in tbe evidence tbat tbe chains were sent by Reynolds Bros, to plaintiff for rafting tbe piles, or jogs, which were to be sent to Reynolds Bros, at Norfolk, and when this was done, tbe chains were to be returned to Reynolds Bros., tbe plaintiff to be charged by them witb tbe value of those not sent back to Reynolds Bros.

Tbe jury returned tbe following verdict:

“Is tbe defendant indebted to tbe plaintiff, and if so, in what amount ? Answer: £Yes, $297.75.’ ”

Judgment was entered upon tbe verdict, and defendant appealed.

J. B. Leigh and Meelcins & McMullan for plaintiff.

Thompson & Wilson for defendant.

"WaleeR, J.

We do not see any objection to tbe charge of tbe court as to tbe right of tbe plaintiff to recover tbe value of tbe chains not delivered by tbe defendant, though there does appear to be exceptions to rulings upon some questions of evidence, which it is not necessary to state more definitely and consider, as they may not occur at tbe next trial, and it is not necessary to do so, for there is a serious error as to tbe measure of damages, for which a new trial will be granted, which will cover tbe entire case as submitted to tbe jury, there being but one issue, and one answer, and one indivisible amount awarded for all damages, thereby covering both questions in tbe case.

There was substantial error in tbe instruction as to tbe consequential damages, tbat is, those arising by reason of tbe additional amount paid by tbe plaintiff on bis contract for piling and rafting. There was nothing in tbe case to show tbat tbe defendant bad been notified tbat plaintiff bad a contract for piling and rafting witb another, which would require tbe immediate, or even early, use of tbe chains. They were sent to bim by Reynolds & Bros, for a particular purpose, which was not disclosed to tbe defendant at tbe time of tbe shipment, nor do we think there was anything in tbe circumstances, or tbe nature of tbe goods, to put them on notice of tbe plaintiff’s contract witb another for piling and rafting. But if there bad been evidence tbat defendant knew, or should have known, tbat its negligent failure to ship and deliver tbe chains in due time to tbe plaintiff would cause tbe damage now claimed, tbe court should have submitted tbe question to tbe jury, so tbat they could find tbe facts, and not decide tbe question of liability for them *29upon tbe mere evidence that tbe plaintiff, was compelled to pay tbe additional amount. It was not solely a question of law, but one of fact and law. And, besides, there was nothing in tbe nature of tbe shipment, tbe character or name of tbe consignee, tbe manner of shipment or tbe destination, from which tbe law would impute notice to tbe defendant that tbe plaintiff was at that time engaged in logging operations, which required tbe immediate use of tbe material, or that any special damages would be suffered. It was as reasonable to infer that tbe chains bad already been used and were being returned to tbe plaintiff as that they were to be used for tbe benefit of Eeynolds Bros, in rafting logs.

The case falls within the principle stated by us in Development Co. v. R. R., 147 N. C., 503, where it is said, at pp. 507 and 508: “Damages of tbe kind claimed in this action, i. e., consequential damages, are only recoverable when they are tbe natural and probable consequence of tbe carrier’s default. Hale on Damages, 256. And ordinarily such damages are only considered natural and probable when they may be reasonably supposed to have been in contemplation of tbe parties at tbe time tbe contract was made. Wood’s Mayne on Damages, 18.” And again, if tbe plaintiff seeks to recover more than is allowable under tbe general rule as to shipments of goods and failure of tbe carrier to deliver, that is, “other and additional damages by reason of special circumstances, a knowledge of these circumstances must be brought home to tbe otiier party.”

It was held in Tillinghast v. Cotton Mills, 143 N. C., 274, that “If tbe plaintiff seeks to recover different and additional damages arising by reason of special circumstances, be is required to show that defendant bad knowledge of these circumstances and of a kind from which it could be .fairly and reasonably inferred that tbe parties contemplated that they should be considered as affecting tbe question of damages.” Matthews v. Express Co., 138 Mass., 55; Railway v. Ragsdale, 46 Miss., 458; Horne v. Railroad, L. R. C., pp. 71, 72, and 583. See, also, Mfg. Co. v. R. R., 149 N. C., 261; Lee v. R. R., 136 N. C., 533; C. R. I. & P. Railroad Co. v. Newhouse Mill & L. Co., 119 S. W., 646; Ill. Cent. Railroad Co. v. Canning Co., 116 S. W., 755; Williams v. A. C. L. Rwy. Co., 56 Fla., 735, which cases seem to be very much in point.

There was no evidence in this case that if tbe chains' were not delivered the'plaintiff would be put to extra expense in performing bis contract with some other party, nor was tbe character of that contract disclosed beforehand to defendant. Tbe case is not governed by tbe authorities cited by the plaintiff. It does not present tbe same kind of facts. It may be that tbe plaintiff may hereafter supply tbe testimony which is now lacking.

*30While we send the case bach for another trial, it may be proper to state that there now appears to be some evidence, if accepted as true, by which the plaintiff >may show such an interest in the chains as will enable him to maintain this action and recover some damages for the negligence of the carrier if finally established.

New trial.