Walker v. Railroad , 137 N.C. 163 ( 1904 )

Walker, J.,

after stating the facts. It is provided by the Act of 1903, chan. 590, see. 3, that any railroad company failing to transport goods received by it for shipment and billed to any place in this State for a longer period than four days after the receipt of the same, unless otherwise agreed between the parties, or allowing such goods to remain at any intermediate point more than forty-eight hours, shall pay to the party aggrieved a penalty of twenty-five dollars for the first day and five dollars for each succeeding day of unlawful delay or detention, if the shipment is in car-load lots, and if in smaller quantities, then a less sum, which is prescribed by the act. The plaintiffs claim that by the statute the defendant is allowed only four days to make the shipment and any delay beyond that time subjects it to the penalty. We do not think that is the proper construction of the law. The word “transport” does mean to carry or convey from one place to another, but it also means to “remove,” and this is one of its primary significations according to the lexicographers. Whatever may be the precise meaning of the word wheta. considered by itself and apart from the special connection in which it is used, the context of the act under review clearly shows that the Legislature, did not intend to be understood as requiring the entire transit to be made within four days from the receipt of the goods. Such a construction might produce serious results and impose upon transportation companies, not only a very onerous duty but one which, in some cases, it would be difficult, if not impossible, to perform. It has been said that in regard to laws, as in other oases, difficulties will arise, in the first place from the disputed meaning of individual words, or as it is usually expressed, of the language employed, and, in the second place, assuming the sense of each separate word to be clear, doubt will result from the whole context. This is due in large measure to the imperfection of language and its inadequacy in conveying our meaning. We must, therefore, regard the context and the general scope of the law as well as the mischief to be suppressed and the remedy provided for that purpose so as to arrive at the intention of the Legislature. “When we see what is the sense that agrees with the intention of the instrument (or statute), it is not allowable to wrest the words to' a contrary meaning. No text imposing obligations is understood to demand impossible things.” Sedgwick Stat. & Const. Law (1857), chap. 6, ppv 225-235. Whenever the intention can be discovered it ought to’ be followed with reason and discretion in construing the statute, although it may not seem to conform to the letter. Sedgwick, supra. We have no doubt as to the true intention of the Legislature in passing this act. The very phraseology of the statute indicates clearly the purpose that the penalty shall be incurred if the company delays to begin the transportation or to' start the goods on their journey within four days after they are received for shipment. The fact that the law provides against unreasonable delay during tbe course of tbe transportation at any intermediate! station, is conclusive evidence that tbe neglect or omission to transport for a longer period than four days refers to a delay at the initial point or the place of departure. To bold it to have been contemplated that four days only from tbe time of receipt should be allowed for tbe shipment of the goods and their delivery at the place of final destination, would impute to the Legislature an intention to adopt a harsh and impracticable rule, and therefore an unreasonable one, as the time allowed might not be sufficient in many cases for the transportation as thus understood. Having concluded that the four days must apply to the time of shipment, wei find no evidence as to when the goods left Oumnock nor as to when they reached Graham, and, even if there had been such evidence we have failed to discover any proof as to the distance between Oumnock and Graham, or as to the time reasonably required to carry the goods from the one place to the other. The burden was on the plaintiff to bring forward the proof necessary to establish his allegations and to make out his case, and in the absence of evidence we can raise, no presumption in his favor. If the defendant has violated the law and incurred its penalty the plaintiff must show it affirmatively. There is not in this case the slightest evidence as to the essential fact to be proved. The plaintiff in the ease of a nonsuit is entitled to have thé benefit, not only of every fact which the evidence tends to prove, but of every legitimate inference from the facts as well, but this does not mean that he will bei permitted to recover upon mere conjecture. The Court did not err in refusing to submit the case to a jury as there was a total failure of proof. The nonsuit was properly entered.

In the answer the defendant sets up* as a defense the unconstitutionality of the act upon the ground that it interferes with interstate traffic. We were told by counsel in the argument before us that this defense was not relied on in the Court below, nor did he insist upon it in this Court. We think the point was properly abandoned. The act cannot be successfully assailed upon this ground. It has been thoroughly settled that such legislation does not contravene the commerce clause of the Constitution. The most recent decision of this Court upon the subject is Currier v. Railroad, 135 N. C., 535. But other decisions on the point are abundant. Bagg v. Railroad, 109 N. C., 279, 14 L. R. A., 596, 26 Am. St. Rep., 569; Smith v. Ala., 124 U. S. 465; Railroad v. Fuller, 84 U. S., 560; Sherlock v. Alling, 93 U. S., 99; Railroad v. Dwyer, 75 Tex., 572, 7 L. R. A., 478, 16 Am. St. Rep., 926. Numerous authorities sustaining the right of the State to pass such a law are collected in the cases we have cited. Legislation of a State which incidentally or indirectly affects commerce between tire States; and especially such as is passed in. the exercise of the police power, are not to be considered regulations of that commerce, within the meaning of the Constitution of the United States. Besides all this, it appears in our case that the traffic was to' be conducted wholly within this State and it cannot, therefore, in any allowable view be regarded as interstate trade, nor can the statute, 'in so far as it affects that traffic, be held invalid as an attempt to usurp the power of Congress to regulate interstate commerce.

In deciding this case we have confined ourselves, as we should do in all cases, to the facts as they appear in the record, We have no right to supply any defect in the plaintiff’s proof by assuming the existence of any fact which the testimony does not tend to establish. If the plaintiff has a good cause of action against the defendant, he must show it by legal evidence and not leave anything essential to its completeness to surmise or conjecture. This must be required of him and all othera similarly situated, as we cannot in any other way decide safely, and with a due regard for the rights and interests of litigants which must be determined by well-settled .methods of judicial procedure applicable alike to all cases, and not by any arbitrary or capricious notion of what should be done in any particular case in order to mete out justice. By pursuing the latter course we would often base our judgments upon mistaken or misunderstood facts, and defeat the very purpose intended to be accomplished in all judicial investigations.

No Error.