Hornthal v. Roanoke, Norfolk & Baltimore Steamboat Co.

after stating the facts: His Honor, in his charge to the jury, seems to have properly assumed that, by force of the contract contained in the bill of lading, the defendant company was discharged from liability as an insurer, and became responsible only f u’' ordinary neglect, in case the goods received should be destroyed by fire on land or water before delivered at Flag Run. Lee v. Railroad, 72 N. C., 236, It necessarily follows, therefore, that any testimony tending to show that the company was not negligent in handling or taking care of the plaintiff’s goods while in transitu was material and competent, and should have been admitted if offered.

*81The plaintiff and defendant contracted with knowledge of the difficulties and delays attending navigation between Williamston and Flag Run when the water was low and only boats of light draft could pass upon the river. If the defendant company exercised ordinary care in protecting the goods while in its warehouse at Williamston awaiting re-shipment, and in transporting them as promptly as, under existing circumstances, it could, by reasonable diligence, remove them in the smaller boats, the stipulations in the contract would operate to relieve the defendant from responsibility. It was material, therefore, that the jury should know whether, while the water was low, so large an amount of freight had accumulated in the warehouse at Williamston that the defendant company could not, by ordinary care, have removed it with the facilities at its command. We think that His Honor erred in refusing to allow the witness to testify as to the accumulation of goods in said warehouse “between the 11th and 19th of October, 1884.” If the company carelessly allowed the plaintiff’s goods to remain, when its boat could have carried the articles to their destination before the fire occurred, the defendant would be answerable in damages on account of the negligence, notwithstanding the special contract set forth in the bill of lading.

There was error, for which a new trial must be granted.

Error.