#### C. E. NEAL & CO. v. WILMINGTON & WELDON RAIL ROAD CO.*

Where freight is carried on a railroad, from station to station, if the owner is not ready to receive it at its destination, the duty of the carrier is discharged by placing it in the ware-house of the company without giving notice to the owner or consignee.

It is certainly not required of the ware-house men, at a railroad station, to notify consignees, living at a distance, of the arrival of their goods, either through the mails or otherwise.

Where a railroad agent received goods into the company’s ware-house, at a country station, which was an ordinary wooden house, which he kept fastened in the night time with iron locks, bolts and bars, also in the day time in the same manner, it appearing that the agent resided two hundred yards from the ware-house, it was held to be ordinary care, and that the company was riot liable for the loss of the goods by theft.

Action on the case for negligence, tried before Bailéy, J. at the Spring Term, 1861, of Edgecombe Superior Court.

The following is the case as agreed between the counsel of the parties.

The declaration contained two counts: first against defendant as “ common carriers, and 2nd as warehousemen. The facts are, that about the 1st of May, 1859, the plaintiff delivered to defendant a box of merchandise of the value of $390, at Weldon, to be transported from that place to Bocky Mount.

• The goods were transported and delivered in the ware-house of defendant, at the latter place, and on the day after the arrival, or the second day thereafter, the plaintiff applied for the box, and on examination, it could not be found in the ware-house, but was found, the same day, a few hundred yards from the station, broken open and rifled of its contents. The ware-house was an ordinary wooden building, such as the company had at all the other stations, except at Weldon, Goldsboro’ and Wilmington, where they are made of brick. The company receive large amounts of freight at this station, for persons residing in Tarboro’ and Nashville and their *483vicinity. The ware-house usually had in it goods of considerable value, and the company had no watch or guard at night for its protection. The agent resided about two hundred yards from the station. The doors of the warehouse were secured by locks, bolts and bars in the usual manner at night, and in like manner in the day time, when the agent was absent. The plaintiff resided, and did business in Tarboro, about eighteen miles distant, and there was a daily mail from Eocky Mount to Tarboro. The company did not give notice of the arrival of the goods. The defendant is an incorporated company, and has been duly organised.

It is agreed that if the Court shall be of opinion that the plaintiffs are entitled to recover, judgment shall be rendered for $390, with interest from 1st of May, 1859, and cost of suit, but if of a contrary opinion, judgment of nonsuit shall be entered.

The Court being of opinion with the defendant, on the case agreed, ordered a nonsuit, from which the plaintiff appealed.

No counsel appeared for the plaintiff in this Court.

B. F. Moore, for the defendant.

*

Judge Battle being a stockholder in the Eail Eoad Company, took no part in the decision of this case.

Manly, J.

The facts, of this case, are similar to those presented in the case of Hilliard v. The same Company, reported in 6 Jones, 343, and our reflections lead us to the same general conclusions.

Where freight is carried on a railroad from station to station, if the consignee or agent be not ready to receive it at its destination, the duty of the carrier is discharged by placing it in the ware-house of the company, for there is no usage or rule of law which requires the company’s servants to deliver elsewhere than at the station, and from the nature of this mode of transportation, it is'impracticable to give notice prior to the necessary discharge of the freight. We think, therefore, the duty of the company, as a common carrier, is fulfilled when the packages are placed in the ware-house of the company (no person'being present to receive them) with? *484out giving notice to the consignee or agent. The exigences of. transportation by steam require this.

Other duties then devolve ®upon the company, viz., those which appertain to a bailment for transportation. The point first occurring in this view of the case is, whether the duty to notify owners or consignees belongs to this particular kind of trust. We do not think it necessary to discuss how this may be in all cases. In the particular one before us, it was not, as we conceive, the duty of the company. The party, by whom the package was owned, and to whom it was directed, resided at the distance of eighteen miles from the station, and had no agent at the place. It cannot be that the ware-house men of the company were required to notify through the mail. The great number and variety of articles transmitted by this mode of conveyance through our country, would make such a duty extremely burthensome, if not impracticable. What may be the rights of the consignees residing at the station, we leave undecided. 'Those who reside at distances, making communication inconvenient, except through the mails, are not entitled to notice.

The remaining question presented by the case,fin the point of view we are now considering, is, whether the company, as ware-house men, took the proper care of the packages in question. Ordinary care is what is required, and this is defined by a recent elementary treatise (Story on Bailments section 41) to be “ that which men of common prudence, generally exercise about their own affairs in the age and country in which they live.” We* have attentively considered the facts bearing upon this onquiiy, and conclude there is nothing to show a want of the requisite care. The house is of the kind used by prudent men to store things of value. It is secured by fastenings appropriate to such buildings — is kept by an agent, who resides a short distance from it, and who closed it, by its fastenings, at all times, both night and day, when he was absent from it. This satisfies the definition of ordinary care, f There may be conditions of a city, or other community, making a night-watch a proper *485safe-guard, but there is nothing in the previous general history of our country places, or in the proofs respecting this particular locality, which induces us to think that it was demanded there by the requirements of ordinary care.

Upon the whole case, we concur in the opinion of the Court below, and the judgment of nonsuit should, therefore, be affirmed.

Per Curiam,

Judgment affirmed.