Robt. W. Glenn v. . the Charlotte S.C. R. R. Co.

PearsoN, C. J.

We are of opinion that the evidence, taking it most favorably for the defendant, makes out a case of gross negligence, and that the Judge ought to have instructed the jury that the plaintiff was entitled to a verdict.

When the plaintiff went to Charlotte in April 1864, and found his cotton in the condition it was in, he had a right to “ quicken the diligence ” of the defendant's employees. As one who puts process into the hands of an officer, may tell him that he has reason to fear the defendant will “ slip out of the county ” and the matter should be attended to without delay: if this requisition for prompt action be not complied with, and harm comes of the delay, the officer is liable.

The plaintiff had made arrangements by which the cotton would have been received by the N. C. R. R. Co. in two hours; of this he gave the defendant notice, and showed to the employee an order under which the cotton would have been received and shipped to High Point “instanter,” and ■ required him to deliver the cotton during that evening. Whether the hands of the defendant were out of the way doing something else, or whether this was a pretext to exact a bonus of the plaintiff, is immaterial to the question before us;. It was the duty of the defendant, when his diligence was thus quickened by a special request, to have had the necessary hands on the spot, and failing in this, it was gross negligence to refuse to allow the plaintiff to have the cotton moved at his own expense. This refusal, whether upon rail road etiquette, or-ffor other motives, put the defendant in the wrong, and created an absolute duty to make good the assurance then given to the plaintiff .to deliver the cotton within three days. As the plaintiff acted upon this understanding, and went home relying on it, its legal effect was an assurance that the thing would be done; and the defendant cannot escape liability by proof that he offered the cotton to Keisler the receiving and loading Clerk of the N. C. E. E. Co., who refused to receive it, saying “ they had received a military order requiring government freight to be shipped;” because, in the first place, the defendant was fixed with the responsibility of an insurer, by the absolute promise made to the plaintiff; and, in the second place, there was no proof that this clerk, Keisler, had any control over the matter, or was the right man to apply to. On the contrary, Scott swears that Keisler was merely a loading clerk and had no authority to accept or refuse goods to be carried, and that the employees of the defendant had notice that this was exclusively the business of the witness Scott Taking all of the evidence, gross negligence is proved. For this reason we do not feel at liberty to express an opinion upon the question so fully argued, i. e. whether a rail road company can restrict its liability to cases of gross negligence, by special contract. We are the less inclined to do so in this instance, because the contract sets out special circumstances that might take it out of a generar rule, to-wit: the fact, that “ the Government required for its transportation almost entirely the whole equipment of the road, and the damaged condition of the cars, caused by the transportation of troops, munitions of war, etc.” As the idea of the exemption of a rail road company from the liability imposed by the common law on common Carriers, is put on the footing of a discharge by special contract, it would seem that the liability cannot be less than that of a bailee to carry for hire, which is for ordinary neglect: for the distinction is, that the one depends on a special, the other on a general contract. And it would also seem that this special contract should be supported by some consideration to take it out of the doctrine of nudum pactum,. So the question will be, can the mere doing of that which the party is bound to do any how, or subject himself to an action, amount to a consideration; or will it fall under the principle, that payment of a part of a debt, the whole of which the party is then and there bound to pay, is no consideration to support a promise of a discharge of the balance of the debt. These suggestions are thrown out, with no intimation of an opinion, but as “ food for reflection,” and to show that we have considered the argument with which the Court was favored.

The error of the Judge in leaving a question of law to the jury,'is cured by the verdict. “ Craton’s case,” 6 Ire. 164.

Per Curiam. Judgment affirmed.