#### G. W. CHALK & CO. v. CHARLOTTE, COLUMBIA & AUGUSTA RAILROAD COMPANY.

Negligence — Damages—Railways— Warehousemen.

In an action for damages against a railway eompany to recover the value of goods lost by the alleged negligence of the defendant, it appeared that after the arrival of the goods they were placed on a platform ac the depot for the convenience of delivery to consignees, and remained there for nearly two days; notice of their arrival was given the plaintiff who paid the freight charges with full knowledge of the place of deposit, but failed to remove them on account of his inability at the time to procure the services of city draymen for that purpose, and in the afternoon of the second day they were destroyed by fire, together with much of defendant’s property; HeM,

(1) There was a delivery inlaw of the goods to the plaintiff consignee, which exonerated the defendant company from liability as warehouse-men.

f2) The fac¡ that the fire originated in a steam cotton com press,erected ou the company’s promises with its permission but not under its control, does not constitute negligence in the defendant, the permission to erect the same not being the proximate cause of the injury sustained by the plaintiff.

(Hilliard y. R- R. Oo6 Jones, 313, cited and approved )

Civil ActioN tor damages tried at Fall Term, 1880, of Mecklenburg Superior Court, before Seymov,r J.

Judgment for plaintiffs, appeal by defendant.

Messrs. Bynum & drier, Hinsdale & Devereux, Walter Qlarh and T. M. Pittman, for plaintiffs.

Messrs. Wilson & Son, for defendant.

Smith, C. J.

The action is to recover from the defendant company compensation for damages to one hundred barrels of flour which had been transported from St. Louis, and over its railroad from Augusta in Georgia to Charlotte in this state, and was a part destroyed and the rest injured by *424fire while on the city platform at the latter terminus before removal. The flour arrived at Charlotte on defendant’s train on the evening of April 14th, 1875, and was unloaded and put on the platform, the usual place for the deposit and delivery of freight to consignees, the next morning.

Notice of the arrival and of the freight charges, which were required to be paid before the removal of goods by the consignee,. was conveyed on a postal card of the date of April 14th, which the general agent testifies he directed his office clerk to give on that day, but which the plaintiff, Chalk, testifies he took from the post-office on the morning of the 16th, being himself absent on the day preceding, though his two co-partners remained in the city. The company’s agent also testified to his impression that a clerk or employee of the plaintiffs came to the depot and made inquiry about the flour on the day of the transfer from the cars to the platform but he certainly did call on the morning of the 16th about 8 o’clock, according to his recollection, and with a bank check paid the charges for freight in full. The city platform, containing the flour, for convenient delivery and removal, and where it was the custom of the plaintiffs and other consignees in Charlotte to receive their goods, none of whom made any exception thereto, was in width 30 feet and in length 400 feet, and built by the city upon land of the defendant, for the convenience of the cotton trade and the railroads converging at that point. This platform wras not under the defendant’s control, and its eastern part on the south side was connected by a gang-way with the defendant’s brick and tin covered depot building, and at the west end of the platform was erected a cotton press, moved by steam, and 350 feet distant from the depot building on land of the defendant, and put up with its consent, but not under its control or supervision.

The plaintiff, Chalk, testifies that on being advised of the arrival of the flour, he was unable to procure transportation *425from a city drayman to whom he applied, and made ineffectual efforts to obtain the means of removing it, and that before the return of their clerk who had been sent to pay the charges, he heard the alarm of fire, and the defendant’s agent fixes the hour at 2:30 p. m., on his return from dinner. There was a large quantity of cotton lying on the city and N. 0. Railroad company’s platforms, and from this latter place the fire was communicated to the defendant’s cars on the tract by the depot, and thence to its depot building, which was entirely consumed. A very high wind was blowing from the southwest, and the fire spread with such rapidity that it was impossible to arrest its progress after its commencement, until the damage was done to the plaintiffs’ goods. The cotton press was built to compress cotton for railroad transportation, the different companies paying therefor according to certain pro rata rules entered into between them and connecting roads and steamship companies, and was in operation just before the fire which came from the direction of its location. A witness stated that his impression was that the smoke-stack had no spark arrester at-' tached to it. ' ■

A series of instructions were asked to be submitted to the jury on behalf of the defendant, which may be condensed in the following propositions :

1. The payment of freight with a knowdedge of the situation of the flour is a delivery in law and exonerates defendant from further liability for loss.

2. Notice to the consignee of the arrival of the goods is not necessary. ■ '

3. If the plaintiff had such a notice on the 15th, the day before the fire, reasonable diligence in removing them was required and was not exercised.

4. If negligence can be imputed to the defendant in permitting the construction and working of the compress upon *426their premises, it is not the proximate cause of the injury and imposes no liability on it therefor.

5. Upon the facts proved, the defendant is not chargeable with negligence, and the burden of proof rests upon the plaintiffs in this respect.

The court charged as requested as to the onus■ probandi, but declined to give the other instructions, and directed the jury, that the defendant’s liability as a common carrier ceased, if not before, on the payment of freight, and thereafter their liability, if any, was that of a warehouse-man of whom ordinary care only is required, and this continues until the consignees'have had a reasonable time after the arrival of their goods to take them away, and if it was the custom of the defendant to notify, consignees of the arrival of their goods and this notice only reached the plaintiffs on the 16th and they thereafter used due diligence in attempting to get them away, and were prevented by the fire, then the defendant would be responsible for the damage; that if the platform was rendered dangerous by reason of the proximity of the compress, so that a person of ordinary prudence would not have exposed his property there, then the plaintiffs woubl be entitled to recover.

The directions given the jury that the liability of the defendant as a common carrier passed into that of a warehouseman at, if not before the time when the freight bill was paid if it did not then terminate by delivery and acceptance, though not subject to review in this appeal, is in our opinion a correct exposition of the law governing that class of public agencies in their relation to those whose goods they transport, and is warranted by well settled decisions in this and other states, and the rule itself reasonable and just. Chief Justice Shaw in an elaborate opinion quoted with approval by a.n eminent author in his work on railroads, thus announces the measure of liability of such companies: They are responsible as common carriers until the goods are removed from the cars and placed on the platform, and *427if on account of their arrival in the night, or at any other-time when by the usage or course of business the doors of the merchandise depot or warehouse are closed,, or for any other cause, the consignee is not then ready to receive them, it is the duty of the company to store safely, under the-charge of careful and competent servants, ready to be delivered, and actually deliver them when duly called for by parties authorized and entitled to receive them, and for the-performance of these duties- after the goods are delivered from the cars, the company are liable as warehousemen, or keepers of goods for hire. 2 Red. Railroads p. 52 § 157. So in Hilliard v. Railroad Company, 6 Jones 343, Ruffin, J. declares that “after the goods are-placed in the warehouse, the owner’s interest is protected by another responsibility of the company which arises — that of a warehouseman, bound to take ordinary care of the goods. See also Whart. Neg. § 569.

Applying the principle to- the facts of the present case, it. will be seen that the flour placed on a platform, (as usual with others and the plaintiffs themselves theretofore, and; without objection or complaint from either) accessible to the owners and convenient for delivery to them,, remained there for nearly two days, and on the second, the transportation paid for with full knowledge of the place of deposit and without any suggestion of an exposure to-peril, until in the afternoon they are destroyed by the Are with much property of the defendant. Wherein lies any negligence ?’ If what occurred is not in law a delivery to the owner so as to make future risks his own, the goods- were where they would have been required tobe placed had he procured the means of transportation, and the doing this in preparation for their removal, shows no want of prudence or care in the company, and the suddenness and fierceness of the advancing flames permitted no removal toa place of greater safety afterwards*

*428 ■ Butthe charge imputes a culpable carelessness and want ■of foresight i-n allowing the construction of a compress so -dangerous in the -vicinity of such inflammable materials ¡as •cotton, under the conditions from which the jury were left -at liberty to infer a legal liability in the defendant upon that ground. There is, of course, danger from fire i-n the ■use of steam power for transportation and for the compression of cotton bales to a smaller size, and yet the public interests demand, the -use of it for both purposes. The compresses reduce largely the costs of carriage in the storage of a larger number of bales in the cars used in transportation.. Steam •cannot be dispensed with, notwithstanding the perils of its use, without great detriment to the agricultural and -commercial prosperity of the country, and all that can be required is the employment of such means as are ’ calculated to remove or reduce tire perils-encountered in the employment of the dangerous but most valuable agent. But this question which might arise if the owners of the compress were sued and charged -with neglect in not providing their smoke-stack with a spark-arrester, or in the careless management and working of the machinery itself, is not presented in this appeal, since the permission to put it up on ■defendant’s premises i-s not the -proximate cause of the injury, or as -it is sometimes said, there is no eausal connection between them..

A. negligence followed by liability to others is defined as the judicial cause of .an injury when it consists of .such an act or omission on the part- of a -responsible person, as i-n -ordinary natural sequence immediately results in such injury.” Whar. Neg., § 73. It must be the natural and proximate consequence of-the aet.com plained of. 2 Hreenl. Evi., § 256.

Measured by this -rule, the damage -is too -remotely connected with the imputed negligence .to exposethe defendant *429to the action. The redress, if any, must bo pursu-ed against the owness of the compress.

As upon ascertained facts,, negligence is a question of law to be declared by the court, in which’ the defendant was entitled to the instruction that the evidence disclosed no neglect in the company for which it is liable.

This view is fully sustained by the ruling in a case not dissimilar in the facts to which our attention has-been called, Knapp v. Curtis, 9 Wend., 60.

There is error,- and- must be a new trial,■ Let this be certified,

Error, Venire de novo.

Note. — The-decision in Erie City Iron Works v. R. & D. R. R. Co., as this term,, is the same as in above case.