This is an action for damages for delay in two shipments of Irish potatoes and other vegetables from Beaufort, N.C. to New York. It is admitted in the pleadings that the Norfolk Southern Railroad delivered said shipments on schedule time to the New York, Philadelphia and Norfolk Railroad Company, but there was a delay of about two days at Port Norfolk after delivery to the other defendant, which alleged and offered evidence that this was due to a storm of great and unusual violence. The produce was delayed and did not reach New York till two days over schedule time, when the potatoes had suffered injury and the other vegetables were a total loss. The evidence of reasonable time from Beaufort to New York was five days, the defendants' schedule time for *Page 150 through freight. The notice to the initial carrier was sufficient notice of the claim under the statute. Aydlett v. R. R., 172 N.C. 47. The court permitted an amendment to the complaint to allege that written notice was served on 16 June, 1915, being within the four months. This was a matter in the discretion of the court. The consignee sold the potatoes at a loss and sent proceeds to the plaintiff, less commission, and refused the other vegetables because they had become worthless by delay in delivery.
The question whether the delay was caused by circumstances beyond the control of the defendants, usually styled "act of God," or was caused by the negligence of the carrier, was submitted to the jury, who found for the plaintiffs. The evidence was uncontradicted that the goods were delivered on schedule time by the Norfolk Southern to the other defendant. The court thereupon directed the jury to return a verdict exculpating the Norfolk Southern. Neither the plaintiffs nor the other defendant excepted to this. It is true that under the "Carmack Amendment" the plaintiff might have held the Norfolk Southern, but the plaintiff does not except. The other defendant could be sued at option of the plaintiff. Aydlett v. R. R.,supra.
There was evidence that both shipments could have been (139) delivered in time but for the negligent delay of the N. Y., P. N. R. R. Company. It offered evidence to the contrary, and especially insisted that the evidence showed that if the second shipment had been received in New York in regular course, it would have gotten there on Saturday and the Fruit and Producers' Association would not have unloaded it. There was evidence for the plaintiff that if these goods had been delivered on regular schedule time they would have gotten there on Friday at least, and could have been unloaded, and that the first shipment had been delayed two days at Port Norfolk at the identical time that other barges went on to Cape Charles en route to make connections by rail for New York.
This phase of the case was entirely an issue of fact, and the jury, under careful and proper instructions from the court, have found for the plaintiff as to both shipments.
No error.
Cited: Paper Box Co. v. R. R., 177 N.C. 352. *Page 151