Concurring. I concur in the conclusion reached by my brother Ashe, that upon the facts found by His Honor the defendant company has not incurred the penalty imposed by the act of 1874-75, for delay in transporting the plaintiffs’ goods. It is given to any person suing for the same, whenever ány railroad company operating in the state shall allow any freight it may receive for shipment to remain unshipped for more than five days, unless otherwise agreed between the railroad company and the shipper — contemplating a voluntary and unreasonable delay in forwarding.
When the construction of the act came before the court in Branch v. R. R. Co., 77 N. C., 347, in answ’er to the argument that it was in violation of chartered rights, Rodman, J., delivering the opinion, declared that “ the act does not supersede or alter the duty or liability of the company at common law; the penalty in the case provided for is super-added; the act merely enforces an omitted duty.”
It therefore becomes a question, whether, if the owner sued to recover damages for the delay, the matters in explanation and excuse would be a defence to the action, and' exonerate the company from the imputed negligence on which' its liability depends. The delay is accounted for by the defendant on the ground that early in September the Seaboard and Roanoke .railroad company, one of the connecting lines over which the cotton was to pass-in reaching *266the place of destination, refused to carry cotton longer over its road in flat or open cars, rendering useless to the defendant for that purpose 120 cars of that class, before in use as part of its rolling stock, and its inability to procure box or close cars to take their place after such notice and before November, on the second day of which the cotton was placed in the defendant’s warehouse; and further, because of the large accumulation of freight in excess of that received the previous year, during the same interval, heavily taxing the resources of the company and its means of transportation.
It is found by Plis Honor in general terms that these, and the detention of the defendant’s cars at Portsmouth, the northern terminus of the through route, notwithstanding the diligent efforts of the defendant by the constant use of the wires to procure their prompt return, were causes of delay in carrying through freight.
Under these circumstances can it be said that the defendant did “ allow,” in the sense of the statute, that unreasonable delay in forwarding the goods, which subjects to the condemnation and severe inflictions, irrespective of actual damage, imposed therefor? The enforcement of such a construction would be harsh to those public carriers that are made to suffer by it, and would not subserve any good purpose to those for whose benefit it was made. There is no discrimination made between through and local freight, since trains of each kind ran each way daily over the road, furnishing equal facilities for the moving of both.
In construing a statute of New York, which requires its railroad corporations to have fixed times for running their passenger and freight trains, and that they shall “furnish sufficient accommodation for the transportation of all such passengers and property as shall within a reaonable time previous thereto be offered for transportation at the place of starting and the junctions of other railroads, and at usual stopping places established for receiving and discharging *267way passengers and freight,” &c., in an action brought to recover damages for delay, the court of appeals of that state use this language: “What is a reasonable period must depend upon the actual circumstances existing at the time the property is offered for transportation.”
Referring to the finding of the referree, Dicxio, J., states them summarily thus : The defendants were without fault in respect to the state of their roads; they had provided sufficient cars and engines, and sent forward as many freight trains as safety*would permit; but owing to an unusual demand for transportation at that time, the plaintiff’s property could not be sent forward faster than it was sent. If unde.r such circumstances a railroad company would be liable on account of a tardy delivery, the business would be quite too hazard ous to be followed by business men. * * * If, when a particular parcel is offered, the next train is filled up, the goods must wait for the succeeding train; or if, on account of an unusual accumulation, the means of transportation for several successive trains, or for several days, are anticipated, the property must remain until its time shall arrive, subject to the qualification that the company must not be in fault in providing sufficient accommodation for the general traffic of the road under ordinary circumstances. Webert v. N. Y. & E. R. Co., 2 Kernan, 245.
The principle extracted from this case is thus declared by an eminent author: “If the carrier, being a railway company, make no special contract to deliver in any particular time, and a delay happen in the transportation in consequence of an unusual press of business, the company having a reasonable equipment for all ordinary purposes, and the goods being carried with as much expedition as is practicable under the circumstances, they are not liable for damages.” 2 Redf. on Railways, § 173 (2).
This seems to be a just view of the carrier’s liability at common law; and the statute, as this court declare in the *268case cited, does not enlarge or extend the obligation, but merely provides an additional method of enforcing it.
In ascertaining the legislative will, as conveyed in enactments, it is the duty of the court to put a fair and reasonable interpretation upon the language used to express it, so as to subserve the ends to be attained without injustice to those of its citizens upon whom its provisions operate. And in my opiniou the delay was not allowed, that is, the transportation not unreasonably and negligently deferred, so as to expose the defendant to the punitive inflictions of the statute.
I therefore express my concurrence in the opinion delivered as that of the court.