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Home My WebLink AboutJ.M. Sharpe v. Southern RR 1903 Railroad Records J. M. Sharpe vs. Southern Railway Co. 1903 pt. | SUMMONS FOR Pee ~~Printed and for sale at Mascot Printing Co., Statesville, N. C. <—T a <SaeeD plies oc eas Ccounty.--In the Superior Court. SUMMONS FOR RELIEF. State of North Carolina, To the Sheriff of _. ...County—GREETING: _ You are hereby Commanded to summon ‘ the Defendant above named, if “Am be found within your County, to be and appear before the Judge of our Superior Court, at a Court to be held for the County of at the Court House in. onthe 2°" onday after the. [OF tain Miho — trang a day of Dercst Ze.o and answer the complaint, a copy of which will be deposited in the office of the Clerk of the Superior Court for said County, within the first three days of said Term, and let said Defendant...’ dake notice if 1d: Jail to answer to the said complaint within that time, the plaintif’......will apply to the Court for the relief demanded in the complaint. Hereof fail not, and of this summons make due return. Given under my hand and seal of said Court, this (O° day of. Qk _.._._ Ato? Clerk Superior Court of CALL. County een - STATE OF NORTH CAROLINA, ) | C n the Superior Court. Cr Seba de we nene ec eer awe eee He ee ot SOSH OOOO ORI OO® nee w eck ee med ent coe ne eeeane een ses ereremersoee acai ac sendln-ahuo tbo voy Wee ch Doin then anatase meaner ave send iirc ean ican eno mo er eh We acknowledge ourselves bound unt LAB 4a VS ig the sum of Dass. Se EL cen peat Bs Sa tate ade shall pay the Defendant ... all such cost as the Defend- ollars, t void, however, if the in this action. Witness our hands and seals, this / Oo ‘dayof Lf nonn e D. 1908. » Me haar... _ (Seal.) ‘ A at: DULe tive ft (Seal.) - eae Ss aes _ being sworn says he is worth the sum of two hundred dollars over and above his debts, liabilities and property exempt from executions. Sworn to and subscribed before me this day of 199 s ' = > Ss S$ oe 2 § i € a . ~— tos oan. eS i & Ox |S i | 3 S y = Cr Sw YY 8 DM > iN = x oe 3 : = a) i & & = ' 2 vas , y ° A 4? eh 2 Sy a a s &$ ™ es -efs & = > & Ss Cinthe, North Carolina, | In the Superior Court. Iredell County. { November Term 1900, J. M. Sharp, { i vs { COMPLAINT. { Southern Railway Co.] The plaintiff complaining alheges: Pirst:- That the Southern Railway Company is a corporation created under the laws of the State of Virginia, and at the times hereinafter mentioned aude dome bus onset was in existence as a common carrier of freights and passengers for of hire between points North and East and the town of Statesville, North f , Carolina, Second:- That in the month of January 1900 the plaintiff through his agent secured the shipment to himself at Statesville, North Carolina of certain machinery which he was then in need of and obliged to have wherewith to run and operate a valuable roller flouring mill in Iredell County; that the said machinery consisted of a cog wheel and a box of cogs, and the same were shipped to plaintiff by the Christiana Machine Company, who delivered the sare to the Agent of the Pennsylvania R. R. Company at Christiana, Pa., consigned to plaintiff, on or about the lst of February 1900. Third: - That he is informed and believes, that the said wheel and box were immediately carried hy the said Pennsylvania R. R. Company and delivered to the Southern Railway Company at Alexandria, Va., one of the northern terminals of the deferdant on the Ag of Pebruary 1900; that the Southern Railway Company received the same from the Pennsylva@- nia R. R. Company upder contract and agreement to deliver same to plaintirr with all reasonable dispatch, but utterly failed and neglected , sail , | (2) to deliver the said property, so that the plaintiff was put to the necessity, in order to start his mill, to make a second order for the said goods and have the same sent to him by Express, but this was not y, done until about the as*plaintiff was making unavail- ing efforts from time to time to try to get his goods delivered to him by the defendant, and it was not until sometime after the plaintiff had secured the s-oods upon a second order that he learned from the defendant that it had part of the goods supposed to be for plaintiff at the depot in Statesville, but this was too late to be of any benefit to the plaintiff. Part of the goods has never yet been brought to Statesville. Pourth:- Plaintiff is informed and believes that the said Pennsylvania R. R,. Company and the defendant herein are associated together as partners in shipping freights North and South, to and from Statesville and other points and in such traffic arrangements the one acts.as the Agent of the other, so as to furnish a through freight line, each sharing pro rata of the profits upon these contracts of affreightment, and that defendant received and accepted the property aforesaid for like feettin gs edie SORE EAE th delivery, 4&n purlty of neflig¢énce in Pailin; to dé ir Samé Qu. 2 aa. GOCPS promptly. That it should have been delivered safely to plaintiff at the depot in Statesville within two days, or by the evening of the ~ os s ™ 2nd of Pebruary 7! of ber A aut, A144 _t 414 4M Lea. Carsce Lt Ae (tt é SoR?O . ~ S ~ & if aud att in Cnnt4h) Pifth:- That the plaintiff's valuable flouring mill was suspended on a account of his not having the machinery aforesaid on account of defendant's negligence for about a period of two months; that he was put to expense on account of his hands--nomeuser of the mill plant-- failure to obtain any profits from the use of tie mill--trouble and expense in trying to get other machinery and in getting the same and in looking after and trying to get this machinery delivered from defendant--and that he has been endamaged by reason of the default of the defendant in the sum of $500.00 dollars. Wherefore plaintiff’ demands judgment of the defendant in the sum of $500.00 dollars and the costs of this action to be taxed by the Clerk of the Court and have such other and further relief as he may be entitled to. B am 3. FA Am em. Atty. for Pinte’ 4 (3) J. M. Sharp after being sworn says that the facts stated in the foreroing Complaint are true of his own knowledge, except those matters stated upon information and belief, and as to these he believes it to be true. pave ltl « Sworn to and subscribed before me this the lOth day of October 1900. H- LM JA Ager CG. $. CG. \ YY so \ .. +. Be ' , a, , ; i /4, s 4 , Ys en © A A “ | fs A r — 7} o jn sf ~_ ‘ : ae 4 4 ce ae a Lr ; & 4 am, ' 7 * s » North Carobina, 4 In the Superior Court, ‘Iredell County. )- ii November Term, 1900, ( J.M. Sharpe, ; vs ANSWER, ) Southern Railway Company. The defendant answering the complaint in this cause Says; That the allegations contained in the first paragraph are truee That @s defendant is informed and believes the allegations contained in the second paragraph are true. That the allegations congained in the third paragraph are not true and they are denied. That the allegations contained in the fourth paragraph are not true and they are denied. Defendant has no knowledge ar information sufficipat at to enable it to forma a belief as to the truth ef the allega- tions contained in the fifth paragraph, and therefore denies the same. And for a further answer and defence to said action, defen- dant say that plaintiff's goods was shipped in twe packages over the Pennsylvania Railroad en Pebs 1st, 1900, ene package being a cog whvel weighing 225 pounds and the other being a box ef cogs; that said shipment was in a wreck en the Penn. Railroad, which delayed its arrival at Alexandria, when it finally reached Alexandria and was turned over to the South- ern, the cog wheel was marked W.G. Sharpe without any desti- nation, while the box of cogs was not marked at all. Not knowing the destination of the & package marked *"W.G, Shurpe* and not knowing the name of the consignee or destination of the package having no mark on it at all, the goods were held in Alexandria for sometime, while the defendant was trying to ascertain to what point to ship them. ‘When it was ascertained - that J.M.. Sharpe lived at Statesville, the package marked "W.8. Sharpe” was immediately xkkmpem forwarded and tendered to hin, but he refused to receive the same. As to the other package, defendant is informed and believes that payment for the same was tendered Mtr. Sharpe by the Pennsylvania Railroad, which was refused. v. And for 4 further answer and defence to said action, defen- dant says, that at the time of the shipment of satd goods, the consignor and the Pennsylvania Railroad Company entered inte a written contract 4m which contract it is stipulated as follows; "No carrier shall be liable for loss or damage not occurring on its ova ex or its portion of the. through route nor after said property is ready for delivery to next carrier or the consigneee" That whatever loss er injury plaintiff sustained by reason of the failure to deliver said goods to him in apt time, was caused by the Pemn. Railroad Company and for such injuries, as defendant is advised and belives, it is not liable. WHEREFORE having fully answered, @efemiant demands that it go without day:and recover its cost. ~- 2s ) ey ; Attorneys for defemiant. North @arolina, ) Wake County. A.B. Andrews being duly sworn, says that he is an of- ficer of the defendant, Southern Railway Company, to-wit; the Pirst Vice President thereof; that he has read the foregoigg answer and knows the contents thereof; that the same is true to his own knowledge, except as to matters therein statud on information and belief and as to those matters he believes it to be trues Sworth to and subscribed before me this the 0 day of Dedember, } / Oli tyvectarh 9a hewkL eq ..o satt bert sdeoaa enw ¢. : . hobtiswrot Megytyix wiotnthersnk cow "eq 3 '@ .6.8" besten eax: sy ¥. OF aA serme oft ovtosot of hearien off sited eid G2 hervrebret® b1i4 t07 @rarriusg 2407 eeve! fed trea saetiet AL al ¢*aheeteb gary sq Orlin ataavEenne? oot vd eqrad® et herebre? enw errs , \ bear vie vrormtaran ef Oo res'ivw s aeiee 89 Oo sawol tot to yrit 990 193 TA “10 + ialy ywulal so acol tevetsdw foT “eeemritaros ef? ww [sn vevilel of @yrlin” ? (oase on” paotlts fi eftain' »~€ © id m"f @ol f 0° esr? al Y ; ; roe" aIne2 cam #2 tA rtolzarmtotal no eeu? od i t gc of 3 oeor: “ainwnes * fade 7 In the Superior Court, Iredell County. November Term, 1900. J.M. Sharpe, Sourthern Railway Company. Whe defendant answering the complaint in this cause says; I. That the allegation comtained in the first paragraph are true. 2. That as defendant is informed and believes o1¢ alicgation BrexkxrmEexx contained in the second paragraph are true. 3. That the allegation contained in the third paragraph are not true am they are denied. 4. That the allé@gation contained in the forth paragraph are not true and they are denied. 5. Defendant has no knowledge or information sufficiant to enable it to form a belief as to the truth of the allegation contained in the fif- th paragraph, and therefore denies the same, ‘ 6. And for a further answer and defence to said action, defendant says that plaintiff's goods was shiped in two packages over the Penns— ylvania Railroad on Feb. Ist, one package being a ¢og wheel weighing 225 pounds and the other being a box of cogs; that said shipment was in awreck on the Penn. Railroad, which delayed its arrival at Alexandria, when it finally reached Alexandria and was turned over to the Sourthern, the cog wheel was marked W. G. Sharpe without any destination, while the box. of cogs was not marked at all. Not knowing the destination of the package marked "W.G. Sharpe" and not knowing the name of the consignee or destionation of the package having no mark on it at all, the goods were held in alexandria for sometime, while the defendant was trying to ascertain to what point to ship them. When it was ascertained that J.M. Sharpe lived at Statesville, the package marked "w.G. Sharpe*® was immed- iately forward and tendered to him, but he refused to receive the same, As to the other package, defandant is informed and believes that payment for the same was tendered Mr. Sharpe by the Pennsylvania Railroad, whic: was refused. 7. And for further answer and defence to said action, defendant says, § that at the time of the shipment of said goods, the consignor and the P- ennsylvania Railroad Company entered into a written contract in which c- ontract it is stipulated as follows; "No carrier shall be liable for loss or damage not occurring on its own line or its portion of the thr ough routs, nor after said property is ready for delivery to nex rier or the consignee.* That whatever loss or injury plaintiff sustained by reason of the failure to deliver said goods to him in apt time,was ca- used by the Penn. Railroad Company and for such injuries, as def endant is advised and belives, it is not liable. WHEREFORE having fully answered, defendant demands that it go without day recover its cost. Charles Price L.C. Caldwell & G. F. Bason Attorneys for defendant. Nort h Carolina, Wake County. A.B. Andrews being duly sworn, says that he is an officer of the defendant, Sourthern RailwagdCompany, to- wit; the First Vice Pr- esident thereof; that he has read the foregoing answer and knows the co- ntents thereof; that the same is true to his own knowledge, except as matters therein stateG@ on information and belief and as to those matters he believes it to be true. A B Andrews Sworn to and subscrited before me this tie ‘i 8 day of December, 1900. H.W. Miller N.P. aE ; B86) Te”, YK) ‘| Sa edie g ‘wep North Carolina | Iredell County | James M. Sharpe . | i vs. j Southern Railway Company | To L. C. Caldwell, of counsel for Defendant: A Take notice that on the /Gliday of May 1901, at the office of J. A. Hart- ness, Clerk of the Superior Court, in and for Iredell County, the under- signed, attorneys for plaintiff will open the de position of E. P. Garrett of Christiana, Pennsylvania, taken in the above entitled cause, and which is now on file in the said C "ke*s office. a ‘ This /6 day of May 1901. “ Attorneys for the Plaintiff. ‘;uepajeg 10j Tesunog Jo apn *TO6T ABH JO ABP of STL *3;uUBpUuelep ey Aq pe ydesoe Aqetey St B89TZ0U STYR Jo soTAUaAg *@OTZON *“Aupdwog ABaTy ey useyynog "SA ediveus ‘Ww seurer a Commission to take Deposition. —Printed and for sale at Taz LanpMark Jos Orrice, Statesville, N. ( 5 NORTH CAROLINA, } In the Superior Court. ac tall COUNT ; CF V4 GREETING : THE STATE OF NORTH CAROLINA TO nd empower you to We reposing special trust 7 Vovat. oa in your intey , do 7 orize ’ 7 , ; . y , ; paintiff, and...: And the deposition in writing, by you so taken, th Superior Court, to be seh for agid lin, on the.., Witnens,....... at office ...... Clerk Superior Court. North Carolinal In the Superior Court. f Iredell County] James M. Sharpe { vs. | Notice, Sbithern Railway Company]! To L. C. Caldwell, of counsel for the Defendant: Take notice that on the@<:/<day of May 19901, in the office of the Penn- sylvania Railroad Company, at Alexandria, Verginia, in the city of Alexandria, County of Alexandria, State Verginia, the undersigned will take the deposition of Edwin C. Joyce, to be read as evidence for the Plaintiff in the above entitiled action, which is now pending in the Superior Court of Iredell County , State ff/ North Carolina, By , ly Attorheys for the Plaintiff. oie Re: a ‘ “At ok Pol tig OL: SP Wee * re wy” he yr de Sa Serb . ve ~ o oe RN Noy ; Sharpe, Plaines cr. | > ~ » . ‘ r _. wey» ee 4 . re , sh % « OT Og . . ev os eo? : ce Mod oy ay aie te Bas AMM cr Sern = ) > N@SLO6 40 Take. Deposits wf + ae # (hoe nA 4 ; “ a ls WO Rai tee Sol vie . owe “Ss rs wv > a re ( aS . , neta . WE) en , + * “y “™ “ ne chy erred t . oe \. 2 Ri ta * ; : ‘ we ow Ping Poe 4 * sane iets led , . » ma Pine ey » eh wot ? and ‘othats, Bois ee Os Soe xg ~s c pag org f e614 cause, whell a al - es s/n . 2 ‘ppo senexarine tf you. ase, propery’ ~ ty . + ae fy " . “7 ; ° “ A . tay” ” . ee ee ee ee ee ee ee ee ee ee ee ce ee ~ ee tee ee an! ‘will? takes i s . — Counsel for Defendants ~~ > OW ded ny —hiw lta ight i tage ene cttagl! we Aedpemigneris ew: ge 9% piers) -: Ra a Ee BORE MB ae Wier mare oy pe Ne Ree: crite . ~ at attr ge dha om ae oe % 4 ey ree a he ae Mae vi , EC ia pO MR: bah Oh apse eo vee Pe ay. eon, eee Re eee Psa eat? r : \ cap er dept oe eX hee tite nn F eg i! wy, oa wre ’ wi ae My ‘ one ig AIM. wp dper tiene ® Ree! ae vr? F ws tan ne ae Cm Peer re ee » Sou aaaaAES. seat b: ae aaa RE Stet. “a eaagia Sanaa prBittiror + ph + gat re es - pesto + def <pnee ; an -? . ‘ ~e ’ _> or iaslals: TPT: > » [radlevh ©. Sheriff > BWrCorF id, . ' ps So . . & few "g er PO Ry spa a~ San bg a a ak mre RAS FINE ee aos ne ike O9 AGT me ve loc ok oe had Gat) | perene oh on Sor. “SA WPAtn obs: tn poe t ak ox Whoa BA No aune Nosh Hh ie obs Cag HRD. Aa tee PARMA ne op Nasa, GREETING : Pees awe ‘This is to contnand you to summon: J. He Wilson and Thomas. Pairrax to appear. St my office, 215 King Street, an the cLty, Ge Didalihte ie. Virginia, on Tuesday, the 2nd dey of duly, | 1901, to depose on behalf? of the Southern Railway Company ina certain. action under ttie style ot J. W. Sharpe WS. Southern Railway Company, pending in the Superior Court of Iredell County, State of North Carolina, and have then there this writ. Witness Prancis FP. Marbury, Commissioner acting under a commission iseuing from the Superior Court of Iredell Countys State cf North Carolina. Witriess My hand, this 2@th day of Juns, 1901, - 2, 1901. Please state all you know in regard to a lot of machin-~ ery shipped from Christiana, Pennsylvania, over the Pennsylvania Railroad, and by said Pennsylvania Raile road delivered to the Southern Railway Company on or about the date above mentioned, to wit, February 43, 1900. State in what condition the machinery was when received, and what was done with it? On or about February 3, 1900, there was delivered to the Southern Railway Company, in the City of Alexan- dria, Virginia, a lot of machinery; as far as condition was concerned, it was all right. The Pennsylvania Company billed to the Southern Railway Company a cog wheel weighing 225 pounds and one box of W. cogs, which were billed in the name of J. M. Sharp to States- ville, North Carolina. [2 @hecked the shipment short for that party, I mean by that, that these articles s0 billed by the Pennsylvania Railroad Company checked short for that man; they did not tally with the way- bill. [1 cneckea over 14® cog with no marks, and one cog wheel marked William @, Sharp, Statesville, North Carolina. When I say "checked over", I mean that the billing did not tally with the name given on the Pennsylvania way bill. When goods are deliveged in the name of one party we cannot change” it to the name of another party, and we must deliver them as billed. I am now reading from the way bill of the Pennsylvania Road in possession of the Southern Railway Company. "Ome cog wheel 225 pounds, one box of W. cogs 10 pounds.” I received out of the same car one cog wheel 225 pounds with no marks, and one cog wheel 175 pounds -2- State of North Carolina, ) In the Superior Court. County of Iredell, Je Me Sharpe, VBe “ee €6 #2 “ew Southern Railway Company, Pursuant to the annexed commission to me directed, I, Francis F. Marbury, Commissioner, under the authority thereof, on the 2nd day of July, 1901, at my office, No.212 King Street, City of Alexandria, County of Alexandria and State of Virginia, there being present Thomas U. Fairfax, proceeded to take the deposition of Thomas U. Fairfax, J. H. Wilson not being present, the said Thomas U. Fairfax being first duly sworn on the Holy Evangelists, to speak the truth, the whole truth and nothing but the truth, between the parties named in the said commission, depose as follows, to wit: Thomas U. Pairfax, a witness of lawful age, being first duly sworn, deposes and says: First questions by Prancis F. Marbury, Commissioner. Please state your name, age and present residence? Thomas U. Fairfam; 35 years of age; Alexandria, Va. Please state in what business you were engaged about the 3rd day of February, 1900, how long you had been 80 engaged, and how long after the said date*were you 80 engaged? I was the Assistant Checker of the Southern Railway Company at the Washington and Ohio Depot in the City of Alexandria, have been so engaged about 14 years, and am so engaged at the present time, which is July Com a el marked for William G. Sharp, Statesville, North Caro- La, : lina.( We received this property about February 3, 1901. I laid it on the platform by the order of Mr. Wilson, our Agent at that time, while the matter could be straightened with the Pennsylvania Railroad./ As they did not correspond with the billing we could not forward them until the Pennsylvania people gave us some orders. It was afterwards shipped to Statesville, but I do not know the exact date. This car contained a lot of damages freight which was in a wreck on the Pennsylvania Railroad, and this partg§eulargroperty was in the car which was wrecked. And further this deponent saith not. Thé foregoing deposition of Thomas U. Pairfax was duly sworn to and subscribed before me at the time and place mentioned ap he caption. Commissio /7 > ; @ a N VWDUMUANLAD f LL? “<a Cag VA oo ae J Jy Z 26- North Carolina | In the Superior Court. Irédell County James M. Sharpe i vs. Notice to open Deposition. Southern Railway Company. | To the above named Defendant: - A . Take notice that at«the office of James A. Hartness, Clerk Superior C t Iredell County, on the -= ay of June 1901, at the hour of- +. =. M., the deposition of Edwin C. Joyce of Alexandria, Va., taken "by the plaintiff in this cause,//will be opened agd)read, a which time and place ym the defendant ca This-®*day of Junel90l. Attorneys. James M. Sharpe vs. Southerm Railway Company. Notice to open Deposition. Office Copy. Service of this notice is hereby accepted, and a copy of same is eet bye - defendant. "BIO i. Aittie cee AS Par Defendant. _ Civil Subpoenas—ror saz sy THE MASCOT JOB OFFICK, STATESVILLE, N. C. STATE OP’ NORTH ‘CAROLINA, Go the Sherif County--Sreeting: YOU ARE HEREBY COMMANDED TO SUMMON Hh le Role. next, then in acertat Plaintiff... .. Against | Na, - Cg Defendant .... Civil Subpeena. For .. Term, GU. Civil Subpcena.—Printed and for sale at the LanpManx Jos Orri's, Statesville, N.C. STATE OF NORTH CAROLINA, personally to appear bgfore House in onthe... Defendent Witness , Clerk of our said Court, at office in Moda AOR OL ih tie Superior Court for Atal ems cama. LAOH Defendant UBPEN A~~~Givil, MN. Oper Juv ia or perp. res 43— " yf App 4 NP agg OS 4 RE ae TS yee + North Carolina, In the Superior Court. Iredell County. November Term I9OI. J.M. Sharpe, vs Complaint. Sourthern Railway Co. The plaintiff complaning alleges: First:- That the Sourthern Railway Company is a. corporation created und er the laws of the State of Virginia, and at the times hereinafter ment- ioned was in existance and doing business as a common carrier of freigh- ts and passengers for hire between points North and East and the town of Statesville, North Carolina. Second:- That in the month of January I90I the plaintiff through his ag- ent secured the shipment to himself at Statesville, North Carolina of certain machinery which he was then in need of and obliged to have wh- erewith to run and operate a valuable roller flouring mill in Iredell County; that the said machinery consisted of cog wheel ard a box of cogs, and the same were shipped to plaintiff by the Chritiana Machine Copany, who delivered the same to the Agent of the Pennsylvania R.R. Company at Chritiana, Pa., consigned to plaintiff, on or about the Ist of February 1908. Third:— That he is informed and believes that the said wheel and box we- re immediately carried by the said Pennsylvania R.R. Company and delive- red to the Southern Railway Company at Alexandria, Va., one of the nor thern terminals of yhe defenants on yhe Ist of February I900; that the Sourthern Railway Company under contract and agreement to deliver same to plaintiff with reasonable dispatch, but utterly failed and neglected to deliver the said property, so that the plaintiff was put to the nece- ssity, in order to start his mill, to make a second order for the said goods and have the same sent to him by Express, but this was not done untill about the latter part of March I900, as plaintiff was making unavailing efforts from time to time to try to get his goods delivered to him by§the defendant, and it was nog until somtime after the plain-— tiff had secured the goods upon a second order that he learned from the defendant that it had part of the goods supposed to be for plaintiff at the depot in Statesville, but this was too late to be of any benefit to the plaintiff. Part of the goods has never yet been brought to Statesv- ille. Fourth:— Plantiff is informed and believes that the’ said Pennsylvania R.R. Company and the defendant herein are associated as partmers in sh- ipping freight North and South, to and from Statesville and other points and in such traffic arrangements the one acts as the Agent of the other, so as to furnish a through freight line, each sharing pro ratavrof the p- rofits upon these contracts of affreightment, and that defendant receiv. ed and accepted the property aforesaid for delivery, to the plaintiff upon the terms agreed on between consignee and the Pennsylvania Rail Road Company and is guilty of negligence in faling to deliver same prom ptly. That the goods have been delivered safley to plaintiff at dhakesx. aiiex the depot in statesville within two days, or by the evening of the 2nd of February I900, after defendgnt received same to wit on Ist Feb. 1900. Fifth:— That the plaintiff's valuable flouring mill and all the Mache inery connected therewith was suspended on account of his not having the machinery aforesaid on account of defendant’ negligence for about a periord of two month; that he was put to expense on account of his ha- nds nonuser of the mill plant -- failure to obtain anyyprofits from the _jas@ of the mill--trouble and expense in trying to get other nery and’ in getting the same and in looking after and trying to get this maChinery delivered from defendant-- and that he has been endamaged by reason of the default of the defendant in the sum of $500.00 dollars. Wherefore plaintiff demands judgment of the defendant in the sum of $500.00 dollers and the costs of this action to be taxed by the Clerk of the Court and have such other and further relief as he may be entitl- ed to. B.F. Long Atty. fory Plaintiff J.M. Sharpe after being sworn says that the facts stated in the foregoi- ng Complaint are true of his own knowledge, except those matters stated upon information and belief, and as to these he believes it to be true. James M sharpe Beeks to and subscribed before me this the [0th day of October I900. J.A. Hartness C.S.C Py OA) oth pz, La Ze ~ Ge North Carolina Superior Court redell County November Term 1901 ames 1. Sharpe . ron Railway Co. Tefendant's case on Appeal This was a civil action tried at the November Term 1901 of Ire) Superior Courtm before his Honor Ceble, Judge and a Jury the folewing issues. Here the Clerk will copy the issues, The Paintiff introduced the 6th paragraph of the Answer in evidences: The Clerk will co,y the same, Here ce) y deposition of E.P.Garrett | i] Here copy the deposition of B.C.Joyee James M. Sharpe tetsified for plaintiffas fol) ews; I live 8 imiles from Statesville, erderee the cog wheel and bex of cogs) | Jan 231900 to be shipped from Christiana Penn on Febry lat 'I received a Bill eof Tading for the go ds and went te States } ibut was told by the agent, Mr Coiner that it nad not come, ; Me , i of marked and used in evidence tafter varch 20th I ordered another cog wheel,after that date la cog wheel came to Statesville marked Wm G. S“arpe I have | never hoard of the box ef cogs, There was another cog wheel | at the station with the one marked Wm G. S_arpe but it was pe, } not marked at all It was necessary fer mo to have tne cog whéé1 a@ it ran all the machinery connected with ny mili. I could not move at all without it. The mill plant is reason~ ably worh $10000. Te mill nad been running up te the time 6 ‘ville and called at the station of the a-fendant for the same | ' ; ' ; i Heri copy Bill ef Lading, and that part on the back there Ipatrenage covered 18 to 20 miles around; the country around Hl were a fraction ever ten per cent on ten thousand dollars/ ithe cog wheel. I went te Statesville very often abeut the 120 er 25 times and I assess my damages fer that at $20. " t t | the préak down from 19th of Oct 1999 te Jan uary 23 1900. Its jit was, and is a good wheat country. My profits the year reund wheel between Febry 3rd and March’ 23rd, I would say I went beth making $50. from which I deduct $10. for ether work done I ewarce only for five times at $2. making $10. fer team. I | whieh includes the price of the wheel $20, express and telegram The millw as idle fifty days because of the failure te get The agent of the defendant knew that the machinery was for the mill. I had two hands employed at $30. er $1. per day for forme. $40. My team went to Statesville five or, six times, erdered another wheel by express and paid therefer $26.50 It Was about thirty days after the will get started up be- ifore it get all it ceuld de. After it started it would take about 30 days to acquaint the patrons of the same. I exchange | fleur fer wheat trying to hold my custom, telling patrons tha I to haul some of their wheat away to other mills, seme allewed | theirs te r main. | What was the damage te yeu in stepping the mill fran Srd of | Febry to Mareh 23rd; what would have ven your prefits en your eapital during that particular time counting your eapital present to me now which was on a wool from ChristiangPenn. ' I would start in a few days. Before 2ird March people bagan invested, the custem you had, the suspension, deliveries to b¢ made and condition of the mill at that time, Ovjected te by the dcfendant. Objection over-ruled and de fondant excepts. The lightest months mre frem May to harvest this would be two and one half menths; net prefit would be 12 1/2 per eent Crése examination. I ‘saw a card upen the coqwhe el at the depet like the one you ¢ - ; a : | | | | fais card sews the name of the consignee to be Wm G. Sharpe . Bo Bill of Lading whieh I received vr-neh the mail fren the fur istian Machine Company shews that the censignee to be my- felt, James M. Sharpe I do not knew what kind of a Way Bill fre Penn R.R. made out about this freight, ner what was turned bver to the defendant, neither do I know how the goods were marked when they left the shops I @o not know that the goods ere improjerly marked or not marked at all. The agent of the efendant here showed haste when I Called his attention te she matter. He teok the Bill ef Lading: and wir.d@ to some one | ‘ ' R.R.Hill testified for the plaintiff. T know Sharpes mill and the surrounding country; it is a good poe country and the site for the mill is one ef the finest that I know of faking inte eomsideration the capital inve ted, your oppertu pity te know the custem, the. character ef the mill in connect y | What in your judgment would likely be ‘the loss ef its failure " hon with the value of the preverty and its eperation state te run fron Febty te Mch 2 ra. Objected te by defendant; Objection ower-ruled and def enda idant excepts. x sheold think fren $250 to #300. per month would be a low es eee theugh I knew nothing of the business. plaintiff rests. Pr -H-Wileen teetified for the defendant. iI was agent of the defendant at Alexandria ya @ tne time en Sra of February 1900. a ceg wheel.and box ef cogs were billed ever to the &@ fendant by the Penn R-R., consigned te Jno Sharpe. Te way bill has been in the possession ef the éfen- |@ant since said date and since it was turned over by the penn Paidread, Ne change of agents effects the bills. The Way Bill shown me is the Way Bill ef the Penn pailaread and theene gencerned in this transaction Here, the clerk will copy Way Bill. and also show shortage, that the gooda were marked shert be- | : This bill shews that the goods were consigned, te Jno Sharpe sause the marking on the goods did not correspond with the @eseriytion in name on th Way Bill. I did net make the marks on ta-Way Bill but one of my clerks 4id make them. Se soon | las I had notice, I actéd upen it; effordt were at once, made te correet the-shertacée. Tracers were started by both the abr endant read and the Penn Read and attempts made to locate the matter correctly. Mr Fairfax made ‘the entries upen the way Bill, that is he made the notations showing shortage. The wa: ill is a paper showing the articles turned over by one read to another at junction points. I did not receive the box of cogs at all. The wheel eame there consigned Ww te Jne Sharpe land ne such wheel was received, but one marked te Wm G. Sharpe The eard now shown me is a card that wasqpen the 175 pund wheel; the card was taken from the wheel here in Statesville isinee this action was begun, The address upen it is Wm. |S-rape an@ no such marked wheel was with us fer the plaintiff i | y Here the Clerk will cepy the eard. lwhen a piece of freignt is marked udon a bill of lading and line way bill marked in another name and the mark upen the jfrieght ig another name altegether, we eannot deliver the [treient enby te the persen holding a proper bill ef lading | and cerresponding with the address upen freight and way bill. These goods were forwarded on Jach 19, immediately upen linfermatien that they might be for the plaintiff. The. imprep er marking; net corresponding with the way bill and the want ef informatien as te whem te ship, caused the delay and none of these was the fault of the defendant When the way bill ef the Penn raod was turned over to us,we checked off and feund the goods short, the markes on the. way bill were made at the time, showing shert/ that is no goods fer: any one by name of Jne Sharpe. [the notations show shortage of cog wheel and box of cogs te | ne Sharpe\eisignee on way bill, and alse shows goods marked wm -G.Scarpe, the articles did not correspond with the wey bill Me wheels at the @epot here weighed 175 and 225 respectively ‘fhe wheel marked W, G? Sharpe is the one from which the tag was taken. and was the wheel turned over by the Penn raod, PHL ABR WATER FAH COREE oP ; Here the Clerk will copy the Special Instruetions asked hy t ‘ithe. defehtahtating which were given and which declined, Here the Clerk will coy the special instructions asked by the plaintiff, indicating thereon those given and refused. jHere the Clerk will co ,y the Charge of the Court as given. There was a verdict fer the plaintiff, | Motion by the defendant te set aside the verdict; uae Because the same is against the weight ef the evidence a Because the verdict is net responsive to the charge of j tne Court fi | Metion ever-ruled and defendant excepts. { { j | : 4 ‘ 4 | ; Motien fer a new trial by the defendant. Motion over-ruled and idefendant excepts. The defendant moved for a new trial upen ithe following grounds, \First--- That the verdict was against the weight of the evi denec. iSeoond--- That the verdict was not responsive te the charge lef the Court. Third--- Fer crrers committed by the Court in | admitting in evidence over defendant's ebjection impreper evidence. Feurth---Beeause the Court refused to give special instruetion |# as asked numbered respectively Second--- Fourth--- Fifth=- Seventh-~ Righth--- and Ninth-~ and in not giving special inetruétionsa numbered First and Third as. asked. - | Pat the Court errea@ in giving the special instructions asked x the plaintiff, | at the Ceurt erred in not instructing the jury that the plaintiff if entitled to recever any thing, could only recever I | i , Aterest upen his silent eapital fer 50 days at six per ca@mt d his expenses rt in paying hands, extra express, his re for his’ Seam fér five days Motion ever ruked, JUdgement fer plaintifr. HERHAY Defendant exce: ts and appeals to the Su reme Court. Notice. of appeal waived in epen Ceurt. Appeal bond fixed $50. and adjudged sufficient, I By agreement ef counsel 30 days allewed defendant te serve 7@ om appeal and 350 days thereafter allowed plaintiff te | ib counter case, | Ss ———————————_——— [SSE North Carolina In the Superior Court Iredell County November Term I9OI. J M. Sharpe vs Replication So. Ry. Co. The plaintiff replying to so much of the answer as he is advised may be necessary says; T. That ‘he denies that defendant has set out the facts as they occurred betwen himself and its agent at Statesville depot with regard to the machinery in par. 7" of answer and he denies that he ever refused to receive the cogwheel but on contrary was willing to. do so provided he waived no rights because of damage done him for non-deliverg before ten- der; and he denies that he declined to accept payment from the Pennsylv- ania RR for the cogs except that through his Attorney he is informed t- hat he has declined payment of a nofminal sum for #he cogs which would in effect destroy his rights of action. That as a matter of fact, as plaintiff is informed, the Pa. R.R. Co. deliverd the cog wheel to defendant one day after it was shipped, and repeted demands for it & other machinery in Statesville Depot by this plantirf, gave defendant full notice who was the consignee-what was the property- and defendant admits in its answer that it got all the goods & plaintiff alleges that it was gross negligence not to have sent same forward. B.F. Long Atts. for P1ft J.M. Sharpe after being sworn depose@s says that the facts set forth above are true of his own knowledge except those stated on information & belief and as to those he believs it to be true. Jany I5- I90I. James. M. Sharpe JA. Hartness C.S.C. | fed Costuia a eo senate J ue het. at 2 tuelln rf for Ml plain tyy te pronack, Hla Pa. Rh. &. liliniured he Ahikh b Afi tnfaut~ Aira Aang rhlin rr anv? Otajipish = ane bufecetiat Htinauty for b thin tetleenery He atthe dadire Wha wre the Comecynae ~ whet wrt tee fovflr, #4 x North Garolina | Superior Court Iredéll County Nov. Term I90I. J. M. Sharpe vs Judgment Sourthern Railway Company This cause coming on to be heard at this term of the court before His Honor Coble Judge and a jury and being heard; and all the issures ha- ving been found in favor of the plaintiff; and the jury having assessed the plaintiff's damages at the sum of Four Hundred, Fifty & °°/I00 Dol- ars; It is therefore considered and adjudged by the court that the plaintiff recover of the defendant the sum of Four Hundred, Fifty & °°/I00 Dollars. and the cost of this action to be taxed by the Clerk of this court. ' Albert L.Coble Judge Presiding. Sa a se ae ae tt LLASS ies = ei Phodibeethardl adatom ene pment enn ay Q Ss ee ip, 5 North Carolina | In the Superior Court. November Term 1901. Iredell County | James M. Sharpe | vs. I PhertrreeSttes case on appeal. Southern Railway Company | Neepttoarionh, — — Lefere Coble. fudge ra fury This was a civil action*triéd at the November Term 1901 of the Superior Court of Iredell County. upén the following issues: ( The Clerk will here copy the issues). The plaintiff introduced in evidence the 6th. paragraph of the answer, which is as follows: "6. And for a further answer and defense to said action, defendant says that plaintiff's goods was shipped in two packages over the Penn- sylvania Railroad on Feb. lst. 1900, one package being a cog wheel, weighing 225 pounds, and the other being a box of cogs; that said ship- ment was in a wreck on the Penn. Railroad, which delayed its arrival at Alexandria, when it finnally reached Alexandria and was turmed over to the Southern, the cog wheel was marked W. G. Sharpe without any dest i- mation, while the box of cogs was not marked at all. Not knowing the Gestimation of the package marked "W. G. Sharpe", and not knowing the name of the consignee ofpdestination of the package having no mark on it at all, the goods were held in Alexandria for sometime, while the defend- ant was trying to asceftain to what point to ship them. When it was ascertained that J. M. Sharpe lived at Statesville, the package marked " W. G. Sharpe” was immediately forwarded and tendered to him, but he refused to receive Xkumx the same. As to the other package, defendant is informed and believes that payment for the same was tendered MR. Sharpe by the Pennsylvania Railroad, which was refused." The plaintiff then introduced in evidence the deposition of &. P. Garrett, agent of the Pennsylvania Railroad at Christiana, Penn. ( The Clerk will here copy the deposition of E. P. Garrett). The plaintiff then introduced in evidence the deposition of Gdwin C. Joyce, agent of P. W. & B. R, R,. ( The Clerk will here copy the deposition of Edwin C. Joyce). “Notes offvidence taken by the Court. Plaintiff puts in evidehee 6th. paragraph of the answer; plaintiff puts in evidence @epositions of E. P. Garrett, agent of Pennsylvania Railroad at Christiana, taken 6th May 1901. Plaintiff puts in evidence deposition of Béwin C. Joyce, agent of P. W. & B. R. R. J. M. Sharpe, plaintiff, testifies: Witness lives sight miles from here; as to cog wheel and box of cogs, witness made the order for them on 25rd. Jany. 19 00, by telegraph - goods to be shipped from Christiana - witness got information that they would be shipped shortly afterwards; cog wheel and box of cogs to be shipped Feb. lst.- witness got a bill of lading and witness went after the goods on Saturday 3rd. Feb. and agent Mr. D. M. Coiner at Statesville told witness goods not there and witness went back on Monday 5th. and @entinued to go thebalance of the month and up to the 20th of March and then ordered another wheel. Witness told Mr. Celner what it wit- ness had ordered and showed him bill of lading; witness thinks he showed it to him.en Sth. Feb. He didn’t tell witness where defendant would receive the goods. Mr. Coiner went and sat down to table at telegraph and said he would atterd At, and witness went back to depot and never did get any answer only he had never received any in- formation about the goods. Witness noticed, that he was sending & tel- egram. The cog wheel came to Statesville 8S, wheel witness had erdered and it was marked " Wm. 0. Sharpe"; witness was notified of the arrival of the wheel Saturday after 25rd. of March, after witness had the other wheel - had getten the other wheel by express. witness has never heard of any box of cogs - there was another big cast mikamkxxxx cog wheel shipped- eeg wheel shipped by freight- witness had not ordered this big east wheel. After Mr. Coiner and witness met and Coiner asked witness if witness was going to take that wheel, witness told Coiner that he would leave the money with his attorney to pay the freight on the wheel and take it if it @id not injure witnesses' claim and Coiner never called for it as witness knows and witness got his money back from his attorney. The big cast wheel witness don't know how it was marked. The wheel witness ordered runs on herizontal shaft that runs the whole machinery of wit- nesses’ reller mill - rune on horizontal shaft - all machinery run from this horizontal shaft. In absence of this cog wheel witness ¢o 28. nat to run hie mill at all. Cogs were knocked out morticed wheel- on the perpendiculer shaft which had been knocked out, and witnéés ~ couldn't run any of the machinery without these cogs. The cogs went inte another wheel than one ordered and cogs went into a wheel whien geared inte the wheel ordered - witness couldn't run without the wheel ner without the cogs. The mill makes 35 oxmx te 40?barrels in twenty-feur hours- guaran- teed te 3@35. The plant reasonably werth $19000.00. The mill had been running up to time witness ordered machinery, from the 19th ef O«et. 1899 to Jan. 23rd. 1900 - this mill is eight miles Nerth of here on Yadkin, run by water. Witnesses’ custom local - 18 er 20 miles around- good wheat farming community - have all the work the mill can do about all the time- witnesses’ busines was increasing every day at that time and witness was getting about all he could de. From Jan. on te May a busy season- May ana June the most idle months. Taking the whole year threw and good months all teget » Witness’ net prefite on dase ¥Y 10, 000.00 a fraction over 104. Prom Sré. Fed. up te 20th. March witness' personal trouble and expense in leoking after the getting of this machinery from the defendant was - witmess thinks he came te tewn about 20 er 25 times- witness travelled herse back and in buggy - thinks witness’ expenses was at least $20 er $25 - his personal expense. Witness made known to agent at depot what machinery was fer and that witness' mill was stopped until witness got the machinery. Witness keeps two hands employed in the mill, one the miller and the other works under the miller- witness had these men te pay during the whole time the mill didn't run - paid them $350.00 a month fer beth - cost witness $50.00. Witness ordered the other wheel by express and this cest wit~ ness $3.50 or $3.75 mere than freight - witness ordered by telegram, . Which was 50 ¢¢nts- wheel and eogs and express cost $26.50 - the « | $6.00 and some conte. It was about thirty days after the mill started up again before mill gét all it couhd fe. After mill started up it would take about thirty days fer it to eireulate through the country that it had start up again- witness held his custom from 25 rd. of Jan. for about thirty days er twenty, by reason of flour witness had on hand - exchanged flour fer wheat and some flour leaned on their wheat in mill and after that the mén came and hauled their wheat from the mill. A man would come in and witness would think he would start in four or five days and witness would let him have flour enoggh to run him until wikmess would think he eoulaé start. Before the 23rd. of March come those people who had wheat in mill come and took it out and some went to other millsand some ‘teok other wheat and went to other mills. What was the damage to you in stopping mill from the Srd@. of Fed. to 23rd. of March - what would have been your net profiss on your capital during this particular time, counting your capital investnd, the custom vou had at suspension, wheat cn hond, deliveris te be made | gk and eonditien of things at the mill at this time? c ( Defendant objects--objection over-ruled and defendant excepts) Anger: The lightest months are from May up till harvest - this would be two months and a half - witness means by harvest, threshing time. Witness would say his net profits during this particular time would have been about 12 i/2%. ( Defendant éxcepts) Cress-examination. ‘ Witness thinks the two hands were worth about $1 0.00 te witness during the fifty @ays mill not running. Witness would say $20.00 fer the trips te Statesville caused by the delay as to the machinery. Card shown witness and he says he saw a card like this on the wheel- on a card frem the Christiana Machine Co., at Christiana, Penn. Bill ef lading shown witness-and witness says it was made out by some body at Christiana Machine Sheps. Witness don't know what kind ef a way bill the Penn. R. R. Ce. made and how the goods were consigned upon the way bill. Re-direst. Mr. Coiner never told witmess that these packages were at Alexandris until after they got here. Witness sent his team te depot, witness thinks three or four times after the wheel after Coiner told witness wheel would be here - think I came as much as five times - this reason- ably werth $2.00 a trip. R. R. Hill, plaintiff's witness testifies: Witness lives two and one-half miles from plaintiff's mill. One of the best mill @ites in the country - don't think it has an equal in the country. Taking into consideration the capital invested, your eppertunis te knew the epst 4 business eperation of the mill ; the character of mill gite and -» you kmow in connection with the value of the preperty and its Gperaticns, state your judgement as te the less likely te be incurred by plaintiff if mill was suspended from Srd. day of Feb. te 23 ré@. day of March. wy ( Defedndant objects--objection over-ruled and defendant excepts) y/ Anawer: Witness should think from witness' knowledge of the work he was doing there that $250.00 or $300.00 per month would be very low estimate. ( Defendant excepts) Plaintiff rests. John H. Wilsen, defendant's witness test ifies: Witness lives at Alexandria, Va., witness connected with Southern anda Chesepeaki and Ohie. About lst. Peb. 1900 witness was at Alexandria, Va. witness heard of cog wheel and box of cogs. On§ the Srd. Feb. defend- _ ant received billing from Penn. Rail Road for 1 cog wheel and 1 box of #* W. cogs, consigned te John Sharpe - Jne. Sharpe- " Cress - examination. ‘ The defendant keeps the bill ~.the Penn. Rail Road Co,d@ees the werk on the bill - witness den't knew the man's handwriting - didn't see him €@ it- doen't know when he @id it, and the paper-writing has been in the pessession of defendant in effics at Alexandria - freight office- witness . Was freight agent~ witness was ctstedian of the paper - witness Goats 2 4g “a knew who made the entries on this bill- witness had no eecasion te axa 8 ~ b/ ‘thee ; 3 res examine this er at time this entry was made ,/-( Witness is speaking about, J. T. ston is the officer now in charge of freight office~ witness got this papér from the present custodian Aug. 8th. and has had it amex ever since. Witness don't knoW who made the entries on the bill. They handle business Railread every day and this bill is on Penn. Rail Read forms that none but Railroad employees have axcess te - witness ¢en't know who brought this bill in defendant's office. Penn. Rail Read Ce. have agents there in Alexandria, the point at whieh Penn. Read would deliver _ eods te the defendant would be at Alexandria. e-direct. ; Defendant puts the bill, marked "Z" in evidence. ie State whether or not the paper which I show you, exhibit "Z", bears upon its face any entries made by your self er any person in your immediate presence? Answer: This paper dees bear marks not made by me but by one of my clerks te whose writing I can swear. Cress-examination. Witness knows where these items were put on paper, they were put on Feb. Srd@. 1900- won't say he saw these entries on this paper Feb. 3rd-- will not say he saw this paper that day. Witness inspected this paper before IY. was any suit about this matter - inspected paper when they received” perenran about this shipyment from Mr. Coiner-- these entries were made by a clerk of witness' in witness' office and witness can swear to his handwriting-- entries made by Thomas U. Fairfax- he is livig. there ig 6éne Thomas U. Fairfax in witness' office, - witness saw turned ever to defendant from Christiana, Penn., by Penn. Rail Road Co. Witness has transfer way bill - a transfer way bill is a paper specifying theparticles that are turned over by one railroad te another at junction point. Wites awthe articles that were turned ever te defendant by P - Rail Reg@- two cog wheels at Alexandria}. Defendant received rade cog w & - defendant did not receive a bex of cogs. At the ti these twe cog wheels were billed over to defendant dié you notice the mark on each wheel? Ana: Yes, sir. Card shown witness and witness says it came off of one of those cogs wheels + The address on card is "Wm.>0. Sharpe, Statesville, N. C." from Christiana Machine Ce. Christiana, Lameaster_Co., Penn. Card put in evidence, marked exhibit fl Witness got this card eff of one of the wheels in freight station at Statesville. Sinee this wheel left Alexandria witness saw it last summer - this same card was on this wheel then-- the other wheel that was billed over te defendant by Penn. Rail Rosd there was no mark what- ever. Witness has a very disti recollection that they did not re- ceive any bax. Whemsthe way bill er billoef lading shows the wheel consigned ~te J. M, Sharpe whether a wheel marked to Wm. G. Sharpe eould be if delivered to J. M: Sharpe upon presentment alone ef the bill of lading, shewing consignment te J. M. Sharpe! { Plaintiff objects--objection sustained-- defendant excepts) > Gox wheel marked Wm. G. Sharpe, how seon was it and unmarked cog wheel forwarded from Alexandria, VYa., to Statesville? Answer: They were forwarded here March 19th, 1900- they were started for Statesville on this date. Why were they not shipped before that date? Answer: because’ defendant had no billing from Penn. Rail Road for any shipment consigned to Wm. 0. Sharpe, that is defendant had no instructions frem Penn. Read to forward goods to Wm. G, Sharpe and they couldn't forward te J. M. Sharpe as defendant had no g00ds marked te him, Witness recognizes some familiar handwriting upon exhibit "Z". The special entries witness’ attention is called to by Atgy., is in the handwriting of Thomas U. Fairfax. esition of Thomas U. Pairfax read in evidence. (Clerk copy). Witness Wilsen, re-called. Plaintiff withdraws the objection te the introduction of exhibit "Z" and defendant puts the same in evidence. Witmess says this is the transfer way bill on freight from Penn. Rail Read te defendant. Witness reads and explains frem exhibit "2", entries - these ~~ cress marks on the paper call attention te a notation at the bottom ef the sheet-- at the bottom witness finds the word "short"--where you see first three cresses they call attention te shipment of 1 ceg wheel and 1 bex ef cogs, consigned te " John Shapre",- “John” written "Jno". Then further notation " over one eog ne marks and over one -4- cog marked * Wm, 0, Sharpe", Statesville, N. ©." ; Witness never got any way bill from Penn. Rail Road for James M. Sharpe-- the articles and marks on it that came over from Penn. aerite. not correspond with the shipment on the Penn. way bill, = “ars ' Cress-examineéd. The defendant received the goods fer shipment from Penn. Rail Road - witness den't know whether defendant is the agent of the Penn, Road or net. - goods were delivered by Penn. Road te defendant for transfert, te. hiw-- Hefendant was entitled to the refenue accrueing from Alexandris 4_ ; to Statesville--it. gets all freight from Alexandria and Penn. Road gets all frem Christiana te Alexandria. On a shipment like this the freights would be collected at Statesville. The agents of witness’ road would knew how to divide the freights. The agent of the defndant at Alex- andria in rebililing the shipment would show the Penn. freight as back charges or advaRces, while the Southern Railway freight would be shown as freight. The Penn. Rail Read's part of freight is shown en exhibit “7°, te-wit: forty-two cents - the defendant would get 568 cents per 100 lbs. on 225 lbs., of freight, provided the shipment ha @ checked as it was bille@d- as witness understands it, defendant only becomes the agent of Penn. Road as any carrier becomes the agent of any road from sheom}.../ it receives freight. Witness says that defendant did not receive a cog wheel weighing 225 ot and box of cogs from Penn. Rail Read billed te J. M. Sharpe at Statesville, N. C. They weighed the two wkuxkaxx cog wheels before they shiped them and 1 weighed 225 lbs., and the other 175 lbs. shiped both wheels here-- the tag was on the one that weighed 175 lbs. witness thinks - witness can't say positively. This wheel marked Wm. @. Sharpe was same wheel which was at Alexandria Sra. Feb., and the 225 lb. wheel at Statesville now is same wheel that was checked over at Alexandria without any marks, and the other wheel here is the other wheel checked at Alexandria, Feb. rd. hey were sent here Mareh 19th. Only teok a few minutes fer a telegram to go frem Statesville te Alexandria. The duty of Thomas U. Fairfax was a check clerkr-and when defendant received a bill, Pairfax would go out and check the articles. Re-direct. Beok shown witness and witness says it is a book in which to make a repert of any irregularities between freights as checked and freights billed. Cress. This beok is kept in agent's office--witness did net make it up--made up by a clerk in the effice. Re-direct Witness says he knows who made the entries in this beok --witness can't say he saw them made--he knows the handwriting--this beok belongs te defendant, company--was brought from the office of defendant at Alexan- ae” a. Defendant offers ig evidence the entries in the beok wit- ies has described en pages 57%, 575 and 576. ( Plaintif? objects--ebjection sustained and defendant excepta) Witness knews of no contract of agreepent between the defendant company and the Penn. Rail Read Ce., te carrying freightes. Defendant ecloeses. James M. Sharpe, plaintiff, re-called: Cress-examination. In mill tract there are 50 acres. Re-direct. : Mie Considering the amount of capital you had invested in thd”. he. ill plant; the peried of suspensien Xxxxxef oper- 0 ions; the season of the year; the idleness of ef your hands,; « @ actual personal expenses; and inconveniene®; your actual trouble, us what was your leas during the pericd of suspension on ac ef suspension? count ( Defendant objects--objection over-ruled and defendant exceptd Ha Answer: Witness was just starting inbusiness and it caused witness to make two starts. The break down ruined witness' trade. Witmess estimated loss pretty heavily on account of the xxxakx&awmxxxxx @elay caused by the break down and the delay of the machinery --witness would estimate his less at $500.00. ( Defendant excepts). The break dewn was on 25rd. Jan. If witness had gotten the machinery on the 3rd. of Feb., witness would not have been hurt so bad. Cress-examination. Witness had just started to build up his trade. bleu Cae ‘' aie lst. Issue. gh Charge of the Court. Did the defendant receive from the Puinsyivedte Railroad Com- - pany the cog wheel referred to in the complaint for the purpose of carry- ing the same as alleged in the compAahdnt to the plaintiff at Statesville, N. C., about the lst. or 2nd. of Feb. 19007 The jury are instructed that the burden of proving -by a greater weight of the evidence that the defendant did receive from the Pennsyl- vania R. R. Co., the cog wheel in question for the purpose of carry ing the same to the plaintiff at Statesville, N. C., on the ist. or 2nd. of Feb. 1900, is upon the plaintiff. if he has done this, the jury axax will answer the lst. issue "yes". If he has failed to do this, the jury will answer the lst. issue "né6é”". The plaintiff contends that the defendant did receive from the Pennsylvania Railroad Co., the cog wheel ref erred to in his complaint for the purpose of carrying the same to the plaintiff at Statesville, N. C., about Feb. lst. or 2nd, 1900, and contends that the jury should answer the first issue yes. The defendant contends that it did not receive from the Pennsylvania Railroad Co., a cog wheel for the purpose of carrying it to’ the plaintiff at Statesville, B. C. about Feb. lst. or 2nd. 1900. It contends that it never received any cog wheel marked for the plaintiff and contends that it never received any such wheel for the purpose of carrying the same to plaintiff at Statesville, N. C. It contends that and says that it did receive a cog wheel marked W. G. Sharpe, but contends that it never received any such wheel for the purpose of carry- ing it to plaintiff at Statesville, and contends that the jury should anewer the first issue “no”. The jury will consider all the evidence bearing on this issue and if they find that defendant did receive from the Pénnsylvania Railroad Co. about Peb. let. or 2nd. 1900, the cog wheel referred to in the complaint; that it received it for the purpose of carrying the same to the plaintiff at Statesville, N. C., then the jury will anewer the lst. issue "yes". If the jury fail to find that defendant received the cog wheel referred to in the complaint about Feb. lst. or 2nd. 1900, for the purpose of carrying same to plaintiff at Statesville, N. C., then the jury will answer the lst. issue "no". 2nd. issue, Did the defendant receive from the Pennsylvania Railroad Co. the box of cogs referred to in the complaint for the purpose of carrying the same as alleged in the complaint to the plaintiff at Statesville, N. C., about the lst. or 2nd. Feb. 1900? The jury are instructed as to this issue also that the burden is on the plaintiff to prove by a greater weight of the evidence that the defendant did receive from Pennsylvania Railroad Co. the box of cogs referred to in the complaint for the purpose of carrying the same as alleged to the plaintiff at Statesville, N. ©. om the lst. or 2nd. Feb. 2 1900. If the plaintiff has done this the jury will answer the 2nd. issue “yes". If the plaintiff has failed to do this, the jury will answer the 2nd. issue "no". The plaintiff contends that defendant did receive the box of cogs Peferred to in the complaint and contends that it received them for the purpose of carrying them to the plaintiff at Statesville, N. C. on or about Feb. ist. or 2nd. 1900, and contends that jury should answer the 2nd. issue "yes". The defendant contends that it did not receive the box of cogs referred to in the complaint. It contends that it received no box of cogs marked to plaintiff at Statesville, for the purpese of carrying same to plaintiff at Statesville,and contends *hat* Inrvy should answer the 2nd. issue “no.” If the jury find that the defendant did receive from Pennsyl- vania Railroad Co. the box of cogs referred to in complaint about Feb. let. or 2md. 1900, for the purpose of carrying same to the plaintiff at Statesville, N. C., the jury will answer the 2nd. issue "yes." If the jury fail to find that defendant received from the Pennsylvania Railroad Co., the box of cogs referred to in the complaint for the purpose of carrying the same to plaintiff at Statesville, N. C., on Peb. lst. or 2nd. 1900, then jury will answer the 2nd. issue "no.” The defendant further contends as to the lst: nad 2nd. issues ¥ patties lls. Seah Sle ia TMT pis altel’ > « is Sis scisicte 2 Pade bos tight Rat if the plaintiff has failed to show that it received the cog wheel mM box of cogs marked to the plaintiff sufficiently clear so that the date defendant could know for whom theywre intended and to what destination they were intended to go, the defendant contends that the jury cannot find the said issues in favor of the plaintiff. The plaintiff contends that he has shown that defendant did receive the said cog wheel and box of cogs from Pennsylvania Railraod Co. about Feb. ist. or 2nd. 1900, for the purpose of carrying them to palintiff at Statesville, N. C. and contends that jury should answer the lst. and 2nd. issues "yes". The jury will consider the evidence and give such answeres to the said issues as. the evidence warrants the jury in giving. Srd. issue. Did the defendant, after receiving the said cog wheel for delivery to plaintiff fail and neglect to forward and deliver the same with reasonable dispatch to the plaintiff at Statesville? The burden is on the plaintiff to prove by a greater weight of the evidence the affirmative of this issue. If he has done this, the ; jury will answer it yes. If he has failed to do this, the jury will anewer if no. If the jury answer the lst. issue no., the jury need not answer the third issue. If the jury answer the Ist. issue yes, then the jury will answer the Srd. issue,- and if the jury find that after the defendant received the said cog wheel for delivery to plaintiff, if jury find it did so receive it, that the defendant failed and neglect- ed to forward and deliver x& the said wheel to the plaintiff until about March 20th, 1900, an@ find that from Feb. lst. or 2nd. to the time the defendantdid deliver che ssaid wheel, or was ready to deliver it to plaintiff, was an length of time for the passage of goods from the place jury find the defendant received the said wheel to Statesville, N. C., then the jury will answer the 3rd. issue "yes." unless the defendant has shown »y a greater weight of the eviden uch a estate of facts as under the court's instructions the jury tind iotwi th- standing such length of time as elapsed from the time the defendant received the said wheel to the time when/defendant was rwady to deliver the same to plaintiff that still the defednant did not fail and neglect to ferward and deliver said wheel to plaintiff at Statesville with rea- sonable dispatch. If the jury find that when the defendant received the said cog wheel it was marked to a different person from what the jury find the way bill. sent defendant by the Pennsylvania Railroad stated it was marked, if find there was any such way bill, and find that before the defnednaft tould forward the said wheel it became necessary for the defendant to ascertain from the Pennsylvania Railroad Co. for whom the Wheel was intended, and find that in obtaining this information the defednant used reasonable dilligence and find that after the defendant ascertained for whom the said wheel was intended, if it did so ascertain, 1% forwarded the said wheel to Statesville, N. C. for delivery to the plaintiff within the time it usually takes for the passage of goods, from the place the defendant received the said wheel to Statesville, N. C., thén the jury will answer the Srd. issue no. 4%+- If the jury fail to find that there was may.unusual delay in the delivery of the said wheel by the defendant after it received game for delivery to the plaintiff, then the jury will answer the Srd. issue no. 4th. issue. Did the defendant after receiving the said box of cogs for delivery pio = gare fail and neglect to forward and deliver the same with reasonable #2i228gemeexx xxxxx dispatch to the plaintiff at “tates- yille,? ’ The burden is on the plaintiff to prove by a greater weight of the evidence the affirmative of this issue, If he has done this the}, jury will anewer it yes. If he has failed to do this, the jury will | answer it no. a If the jury answer the 2nd. issue no, the jury need not answer. the fourth issue If the jury answer the 2n@. issue yes, then the jury — on will answer the 4th. issué,- and if the jury find that after the defend- ant received the said box of cogs for delivery to the plaintiff, if the jury find it did so receive it, that defendant failed and neglected to P ward and deliver the said box of cogs to the plaintiff until about March 2@th. 1900, and find that from Feb. lst. or 2nd. to the time the @efendant did deliver the said box, or was ready to deliver it to the plaintiff, was an unusual length of time for the passage of goods from the place jury find defednant received the xa&xumxsaid box to Statesville N. C., then the jury will answer the fourth issue yes, unless the defend- ant has shown by a greater weight of the evidence such a sate of facts as under the court's instructions the jury find that notwithstanding such length of time as elapsgd from the time the defendant received the said box to the time when defendant was ready to deliver the same to plaintiff that still the defendant did not fail and neglect to deliver sai@ box to plaintiff at Statesville with reasonable dispatch. If the jury find that when the defendant received the said box it was marked to a different person from what the jury find the way bill sent defendant by the Pennsylvania Railroad Company, stated it was marked, if the jury find there was any such way bill, or find that said box was not marked at all, and find that before the defendant eould forward the said box it became necessary for the defendant to ascertain from the Pennsylvania Railroad Co. for whom the box was intend- ed, and find that in obtaining this information, the defendant used rea- sonable dilligence and find that after the defendant asceftained for whom the said box was intended, if it did so ascertain, it forwarded the said box to Statesville, N. C. for delivery to the piaintiffr with- in the time it usually takes for the passage of goods from the place the defendant received the said box, to Statesville, N. C., then the jury will answer the 4th. issue no. If the jury fail to find that there was any unsual dealy in the delivery of the said box by the defendant after it received the same for delivery to the plaintiff then the jury will answer the 4th. issue no. , 5th. issue. What damage has the plaintiff sustained by reason of the non- delivery of the ssid property? The jury are instructed that the burden is on the plaintiff to prove by a greater weight of the evidence what damage he has sus- tained. If the jury come to answer the Sth. issue, then the jury are instructed that the plaintiff would be entitled to recover such damages , if any, as were the direct and necesary result of the defendant's delay and such as were within the reagonable contemplation of the par- ties at the time the contract was »>- and the jury, in estimating thé damages will consider the interest at 6% on the capital invested for such time as the jury find said capital remained idle on account of defendant's delay, the amount the jury find plaintiff was compelled to payto unemployed workmen on account of such delay, and such other costs and expenses incurred by the plaintiff as the direct and immediate consequence of the defendant's delay. The plaintiff contends that the capital invested in the mill im question and hr ined idle as plaintiff contends on account of defendant's de was #10, 000.00 and he contends that his net profits on this capital was or should have been during the time it wae idle, as much as 12 1/2 ¢. and he contends that his personal expenses Which he incurred as a direct resupt of defendant's delay amounted to $20 or $25 and contends that he hau tp pay two cands for unemployed time as much as $50, and contends that amount paid by him as expéssqs on another wheel which he contends he was compelled to order by reason of defend- ant's delay, amounted to $3.50 or $3.75 more than freight, and plaintiff contends that his mill by reason of defendant's delay remained idle 3 from the 3rd. or 4th. of Feb. 1906 to about the 23rd. of March 1900, contends that by reason of such delay he lost his custom and contends that he is entitled to recover as damages the sum of $500.00. The defendant contends that the plaintiff is not entitled to recover any damages. The defendant contends that it nas caused no damage to plaintiff through any negligence of the defendant, and con- tends further that if jury should find that plaintiff is entitled to recover any damages that the amount claimed by plaintiff is excessive, and contends that the jury should answer the issue as to damage, "none". enna kK -4- The jury will consider the evidence and give such answer to the 5th. issue as the evidence warrants the jury. in finding. - Db a és 2 a 242 he " ° a P - Th ‘oD » . rae no Prt o Rh dre > i ’ * J of . . a - nl a “ve eee m . ed S ay oo , Lt . Ce; As y / J, : ¢ (Af a ws See ~~ /? ema - = is ~ So me a c= ] | | j i bpecial Insruetions asked by the defe miant; rst~-+ That if the jury should find from the evidence that on pog wheel and ene bex of whecl cogs #r wooden cogs were not oad er tagged to J.M.Sharpe by the Penn Railroad and were @ iver @ to the defendant, the Soutern Railway Company, not mar bd or tagred to said J.M.Sharpe wien so delivered, but were urked Sm nest Sgarpe, and heing 80 eae Sat t he defendian d the defendant anny Ho of t Parnes led feliver the same to_J =~ pete) the defendant would not be lia d the jury E> haa ee caus as eaenes the wey ef the a feted Me above sectbinckhen,/ tenor Aci fine CT ater Zhg pee eee. Sy foi lag Blan = eisai 2 beeond----That if the jury should find that the freight above named was improperly marked wither by the consignor, the Chris tiane yachine Company er by the initial carrier, the Penn Rail road and the same was delivered to the defendant so impro;erly bare, the defendant would net be liable and the jury should Bo find. Me jolene ete lrinwle Pn ferry (2 ene 4 eetP hefrnn-C paagene | hird=-++-- That if the jury should find that the consigner, th Christian »;achine Cempany filled out a projer bill ef lading ithat the same was signed by the ageht of the penn pailroad at Christiana and that the same was mailed to the plaintiff and received by him and introduced here in evidence, yet if the goods were impreperly marked either by the Machine Company of Gi anat Penn, pailrad and delivered_so improper d because of Geforce carling th sarentent Puan ar big ce te isame , the fault ae not be with the defendant and it would ot 7 She thers. FH poet ibe liable~ Sehanas Aertel AL LF spans Boe Fourth-+ That if the jury should find that the “pill wor tre wae Fone Railroad showed the ©°6 wheel subi gies to Jne€ ha in fact the said cog wheel was marked William G Sharpe. and peuse ef the confusion, viz the improper bill of the Penn Road ce the im rover mark upon the goods prevented the defendant from forwarding the same, then it would be the duty of the jury A find in favor of the Sor eae 3 5 IE Oye >| 3 ree ht th--- Tat if the jury shoula find that the whecl, as turned Resfosiarh er by the Penn pailroad to the defendant, bore the tag ef the hristiana Machine Company and that the address thereon was ee G’ Sharpe and because of the error,the defendant was spt able to deliver the same to the plaintiff, then the defen nt would not be liable and the jury should so find, though th @ was not forwarded to Statesville,. That freight censign to one person cannot be delivered by the carrier te another an to the person whose name appears upon the freight. Bb Auk. So canes Ait_y Digi e ee Stan Se C2 SS in Mfheol eventh--- Before the jury ean find the defendant responsible, must find from the evidence that the freight’, that is the @g whecl and bex were properly marked to the plaintiff and de~| ivered to the ee by the Penn Railroad so marked oboe ee Ylexeceluze Lt At eco > xa > eth Suck exrcei ee .. ight-- - If the jury should find that the defendant and the Peacforerod i Railroad started what are known as tracers out for the purpose of finding the lost cog wheel and box and for the purpop be finding and delivering the same to the plaintiff, so soon as Fhe delay was made known to them, and the jury should further find that the agent of the defendant at Statesville used the vires of the defendant wyon being notified by the plaintiff of the delay; then the defendant exereised diligenee and would hot be liable this case. alefir~ Pa 2 Pegi, | lather acer Ol oome comy tifa taD w A BmFrma S| inth--- That from a1] the evidence in the case the plaintiff is not entitled to recover. he lire e APF FACkn, Len’7 Ai fee Ks Opec eee agen. ~~ The measure of damages occasioned by delay in the shipment ef the cog wheel qnd the wooden cogs, when the defendant was not inf rmed of the special circumstances which might result in a loss to the plaintiff, and there is no evidence of any notice to the defendant that loss might eccur, could only be, the actual mgppnses incurred by the plaintiff, that is, his time $20, Hire of hands $40. Cost ef macinery and | express paid $26.50 and cost of team $10. making. total of $96.50 .Any anticipated profits would be speculative and could not be cohsidered by the jury, not comtemplated by law and net contemplated upen the entering into of the contract ef shipment. } . — - ‘ -— oe > leo Athor-< tect Stee oLieng. rete, = Sine} ~~, nd ‘ 7 - pe | ely plage cee tecngeer x ene é / Trea, | we ; ‘Instructions prayed by the Plaintiff. | Rebiwetempany. [ (1) If you find by the greater weight of the evidence that the defendant » ’ received from the “ennsylvania Railroad Company the cog wheel referred to in the complaint for delivery to the plaintiff at Statesville to he shipped over the defendant's line, it was the duty of the defendant to forward the same to the pl aintiff at Statesville with reasonable dispatch Yh tone tthwiltein Cov grtce (Cilla. 982 Sn 0, » ‘9 If the notice in the bill as it was billed on the rennsylvania road 7 et mr eousht to the attention of the defendant Company's agents at Alexandria that the goods were billed to "ames *. Sharpe, Statesville, C., but you further find that the marks on the goods were W. GU. SRurpe or Wm. G. Sharpe, or that the foods were not marked at all, but that the defendant's agents received the same and took the same into possession, then the duty was imposed upon the defendant through its agents to find out with reasonable diligence from the agent of the Pennsylvania Railroad at Christiana the destination of the goods, the name of the consignee, so as to enable it to forward the goods to the proper party and to the proper destination, and if you find that it failed to use this @ue diligence in this respect, the defendant is guilty of negli- gence and is liable for the result of the said negligence, and this instruction has application to all articles shipped as well the cog wheel as the box of cogs if you should find that the defendant Sampany~ came into possession of hoth. We clael. Aatpec tive fone fries 1 pian ® Peo (3) You are further instructed that if the defendant took the goods forinte its possession as above explained, or anv part thereof, and it had any trouble as to the identification of the goods, that it was its duty to have used reaeonadie diligence to have aseertained the identity of the articles to be snipped as well as the destination and the consignee as ahove explained, and you can consider in this conneetian ae “what means the defendant Company had as furnished you by the na pet “obtain thie information by wire or otherwio: from the ag tt at os ee ieee af Pe. oh 3 os be aie te Christiana, or at the oe at Statesville, (4) If you find by the greater weight of the evidence that the goods, D or any part thereof, was delivered to the defendant at Alexandria 4 .on or about the 2nd of February 1900 and that the plaintiff appeared the depot in Statesville on or about the Srd of Tehruary 1900 and made known to the acent at Statesville that he claimed the goods referred és. in the complaint, and you further find that on that day, or on the 5th of said month, or on other days soon thereafter that the Plaintiff exhibited to the agent in Jtatesville the bill of lading purporting to state the kind of goods, the weight of it, the name of the consir-nor, the name of the consignee, the station from which it was shipped, - and you find that ot a informetion was thus given Sedalia tack MM a. to the defendant's arents a ene Pa failed to idefitify the coods and the edisipnee and to forward the same with reasonable dispatch - the defendant is cuilty of negligence and is liable to the plaintiff for such damages as he may have sustained. yr As to what is reasonable time within which a common carrier should 4 Zo torware goods, “in the absence of any express contract between the > hipper of goods and the common carrier to the contrary, if the carrier receives goods to be shipped, there is an implied agreement on its part to ship them within a reasonable time, and the statute in North Carolina has fixed that time to be within five days after the carrier received the goods for shipment = x x the statute expressly provides that the carrier - a Railroad Company - shall ship them within five days after agreed petween I (Me Jogt. taal he © any and the shipper." ee Mea-ensem Be Za c a apy a Lidice : - Foe Po ake ; afer “O35; St: (aos ae Cae . ae , : M-tetadky ced 3 op Pe i Rhee: a ter a you ae ete te n vor © piaintit under the : nstructions given, you are instructed that he is entitled to recover it receives the foods for higewnss unless otherwi damages of the defendant, and in resnonee to the isene aubmitted to you on the subject of damages you will allow the plaintiff as an anewer *4.. ‘cara He Qe eee ae said issue guch damapes as will be compensation "pan copatat, i rad é : i oe : v é oe ae eeadenae & 2. 1% Crt: % Pg Meakin ely ae 4 pit + * ite eal 3 f th, ‘ > ej “aed oh an he Be ae 9.0 whilst the plant was lying dd@le for lack of machinery to run it - if you find that this machinery was necessary to run it and was detained as above explained - and for the period of time that the said plant was prevented from operation by reason of the lack of said machinery; you will also allow him compensation for his workmen, or hands, which you may find were neceaaarily Kept by him and unemployed because of the stoppage of the said plant; also actual expenses incurred by him in trying to obtain the said machinery from the defendant, and besides any other damares which were the direct and necessary result of the defandart's negligence in failing to deliver the said machinery. Citine Rebewet 1s 2 ” - . vere B+. ‘: peg: a siege tle or tone. Baupficcemcre accom f2a+ CR CK cme ee : te . ef ; ; a a een a lk. PF ke Jor Coren, AZ DE ee Ke Cm PAUP 2. AD | re AeYit Glare 22-7 ence Etta Pann ennennaaEaS tM ate ta Ar “a eye ee if 1 { : ; * Pr TP ee a » le a es me Railroad Records J. M. Sharpe vs. Southern Railway Co. 1903 pt. 2 jy SS Sap | os §aga. M. Sharpe, ve “RVIDENCE. Southern Railway Company. Deposition of Edward P. Garrett offered by plaintiff in evidence. Bill of Lading introduced by plaintiff. The Defendant objects to Interrogator, and Answer there— to marked A. It is admitted and the defendant excepts. Question and Answer marked A withdrawn. Plaintiff offers in evidence the allegations of Para- graph 2@ of the Answer in connection with paragraph 2 of the Complaint: Plaintiff offers in evidenee the ad- missions in the answer of this defendant in Paragraph 6th of the answer. Plaintiff also introduced the paragraphs of Defendants answer beginnings “And for ea further: answer and aéfence *o said action, the defendant says” *####e position of Edwin C. Joyce introduced by Plaintiff. (Both of these depositions appear in the Judge"’s JAMES M. SHARPE, Plaintiff. Q. You are the plaintiff in this action? Yes, eirs | Where do you live? I live 8 miles North of Statesville. I wish you would state in your’own way of your own per- sonal knowledge about the facts connected with this ship ment of goods to vourself? On the 23rd day of January ‘I broke a wheel-- What yearowas that? 1900. I broke @ @heel between three and four o'- clock and come to stateayhlie that night and ordered it by telegram. I received the bill of lading the 1st February, dated the let, proving that it was shipped. Q. Dated the lst? Bo Yea, sir: Cross-Examination. Q. That is that bill of lading? A. I think it is the same one. I come after the wheel on saturday, that would be the Sra. The Srd of February? I think it was. It had not arrived. Who did you see? Mr. Coiner: Just relate at this juneture what ovvured between you and Mr. Coiner; whether you showed him the bill of lad- ing, and all about the matter? What transpired petween you and Mr. Coiner? I don't recollect whether I showed it to him that day or not. I would not be positive. He said he did not think it would reach there before Monday. I went back then after the wheel. The second time I think I showed him the bill of lading. Q. That was on Monday? A. Yes, sir. Court. Qe What day of the week did you break: your wheel? A. T don't recollect. Q. What day of the week was February 1st, the date of the shipment? A. I don't recollect. Long. Q. Saturday was the Sra? Monday was the 5th when you went back to see Mr. Coiner the second time? A. Yes, sir. Q. What happened then? A. They were no there, and he told me, andl asked him if he could not look after them, andhe said he cowld, and -2- Oe T asked him to let me know as som as they arrived. I am not positive whether he tekesraphed that day or not: He said they nad not. come, and then in a day, I think the next day, I was back again, and he then took the bill of lading and set down at the telegraph seat, and i suppose telegraphed, as Be said he would and look af= ser it, and sent a tracer as I understood him. You say he ha@ this bill of lading in his hand? I think s0. He told you he would telegraph to Alexandria? te did not say where. we Gia not mention the place. Arver iw took the bill of lading in his hand and went to the wire, how long were you there while se was comiin- icating over the view’ Probably fifteen or twenty minutes. I left; he paid he would Bee me later in the day. Court. Did you leave the bill of lading with vim? A. tT don't think r did. Later Tt went back and he was not there, I called twice and he was not in. I got no word from it in regard to it. Q. Mr. Sharpe, Tell his Honor and the Jury whether you made known to Mr. Coiner the nature of this machinery, and what effect it was naving upon your mill? I did. What did you tell him? I told him we could not run without it. He said ie was Going everything in his power to get it for me. Go On and state the next time you went back? What happened the next time you went back? He was not there. IT never aia gut nothing oniy there Was a wreck om the Pennsylvanie FR. R. He had no word definite. I never got any word out of him defeinite -3- as to where the goods wae, Did ne ever: show you any of the telegrams that he got in answer to those that he had sent? No, sir. He never showed me none. How many different times did you come from your place eight miles to town to see Mr. Coinher about this matter trying to get that wheel and box of cogs? I think it was twenty or twenty-five times. tT eould not be positive, but it would come inside of twenty-five. During these twenty or twenty-five applications that you were making at the office for the box of cogs and wheel, did you ever get any information at. all from the Agent about your box of cogs? Not only that they were not there. Have you ever got your box of cogs up to th time? Not this one. nes re at the depot. was notified on the 23rd of Ma i. hink it’ was, by a postal card that t! h ; that the wheel had come. Who sent you that knowledge? Mr. Coiner. rom the time thet vou got that notice about the ist of Febd- ruary that these goods were shipped to you up to the 25rd of March, what had you done in order to get your mill start- ea? I ha@ ordered another wheel by express, and had started my mill about the time I So between the lst of February and the 25rd of March, when this notice came to you, you had been put to the necessity of ordering by express a wheel and cogs, and nad got them, aid had put them in on that day? Yes, sir: Did you go and see the wheel and see if there were any cogs after the 23ra’? oithte T went there once and saw the wheel, and looked at +he number corresponded with my wheel. How long had the thing been over there? tT don't recollect the time whicn it had been there, but T think it was a week or ten days before IY went over to 100k at it. Court. That was a week after you received tnat by express? A. Yes, sir. A week or ten days. Long In regard to that wheel, they tendered you that wheel ana Mr. Coiner asked me one day between here and the depot if I was going to take that wheel, ana I remars# ed to him that - would leave the monsy sith you, and if it aid not interfere with my rights 1? would take it, and TI left +ne money for the freight witn you. With me? Yes; gir. Did you ever afterwards get your monsy back? yes, sir. Vou can state whetner or not at that time you had employed me as your attorney? Yas, sit. You offered Mr. Toiner to accept this wheel with my consent, provided it would not interfere with your rights tnoat had al- ready accrued? Yes, air. nid they have any box of cogs over there? NO, sif, noen that 7 saw. None with the gachine. You Have never been tendered tne box °f cogs? No, ir. There was another cast wheel shipped with this wheel. I don’t know what. it wae for. I had no machin ery for this wheel. Had vou ever ordered @nything of this kina? sir; Now, Mr. Sharpe, please teli “wis Honor and tne. Jury that wheel was for? Was it necessary for you *o have that whe. run that A.. Could: not-mm it withou Long.” Not without this A. Yes, sir. > r) ‘ , > + . te yr 77 +> + "7 Q. Suppo 30 vou nad ha S ana Ae A no 4 £44089 ur mill? A. No 3] nt n tne tne run. on the at“ * perpendicular You @ould not run *% nou sither? That wheel y ordered was for my mill. bill of lading by express was an entirely . hat vou ordered before and nad not a7 + aAvraiayvres” LiaL T 4 we eu. 8 3alie gaue kinda? A. Yes, sir. But the cogs belonged to the other wheel; for ‘the bevel wheel at home: Q. Now, after. the break-down, and after you ordered this stuff, and up to the time you got your mill in operation and restor ed your cuatiom,how-long-a period of time did this « cover? Di@ I understand you how long it took me to get in operation again? 7 T understand you to say you made an order in January, and the notice of the shipment to you was received about the lst of February, and you made another order; and when it arriv- ea your mill started off again? The 23rd of March, in the evening, late. Mr. Sharpe, what kind of a mill was that? It was a roller mill of a teputed capacity of 40 barrels. t*don't think it would exceed over thirty-five barrels in 24 hours . How long had it been in operation? On the 25rd of october. What year? 1899. The 19th day, and had run up to that time, and had juet got started fairly in business when this wheel gave way. What had been the condition of the mill and its patronage to that time? It had been good, and was improving as far as [ went. Was this a favorable or unfavorable period of the year? DEFENDANT OBJECTS. A. It was right new; had just started it on the 19th of ,_cto- ber. Q. Was it favorably or unfavorably located? DEFENDANT OBJECTS, T= It was located eight miles North of here on the Wilkesboro road, and you can get to it. Right on the side of the road. What was the value of the property that you had invested in that mill plant? I estimate it at ten thousand. How many employees were kept out of employment; did you have employed there? I had two hands. Who were they? Mr. Heffner and John Matthews. What capacity? They were employed in the mill. They staid in there. Was one of them the man that had the conduct of the mill? Mr. Heffner was a good miller. The other worked under him all the time. Mr. Heffner was the head miller, What were the wages of those two men? The millers were $20.00 a month. What was the wages of the other man that assisted him? Ten. Well, during thie period of suspension, were these men dis- charged or did you keep up their pay in order to retain their services? I nad them hired by the year. Did you have to retain them during the suspension? yes,eir. Now, mr. Sharpe, to what expense were you put to in order to get the coge and wheel that you had got by express? The express coset the extra on the freight and the bill of the wheels. The Company had put in the wheel, , dust the lump sum tf you can tell it; in getting that cog wheel and those cogs that you ordered by express? -8- A. $26.00. Court. ‘The expense was $26,007 A. Yes, gir. Long. Was there any other: expense connected with itt A. Yes, sir. T had to send my team after it. Q. What was that? A. $2.00 a day for my tean. court: Ome day? A. Yes, sir. Lome. You ordered by telegram, what did that cost you? A. 50¢, I think. Q. Do.you remember what the express was that you paid? A. I think it was Six Dollars and something. I think it: was six. Court. The express on the wheels and the cost made $26.00. The telegram was 50¢. Long. When you made these trips---20 or 25 trips here to Statesville, eight miles-- to try to get your wheel and cogs, how did you travel? Sometimes horseback, and sometimes in a buggy. Where did you feed your horse? Somtimes the days were short, and y did not feed, and some- times I did. When my wagon was here ~t had feed. Who made these trips? I made them myself. What is your occupation when you are at home? I was running a store and farming and looking after my mill. You came in person? Yes, sir, State if you had to send any conveyance in here at any time in regard to this matter, and what sort were they? A. I sent the team in here; my recollection is five times. -9- What kind of team? Two horses, wagon and driver. I always charge $2.00 a -@ay for a tean. There were five trips? Yes, sir. When you were in here in person, Mr. Sharpe, looking after the getting of that machinery, these 20 or 25 trips, were your bervices needed at home? Yes, sir. COURT ADJOURNED. Mr. Sharpe, I don't believe I ask you what such a cog wheel as that was----what is it worth? $20.00 Mr. Sharpe, you can state to the Court and the jury, whether or not that particular wheel was to have cost, or not to have cost you anything---whether it was a donation of the manufacturing people to you om account of the purchases of machinery to you? A. It was a donation on account of the other wheel was a little too tight on the shaft. Now, Mr. Sharpe, after the failure to deliver and you got that notice that there was another wheel over there, I under stood you to say that you went there about ten days after=- wards to see what was there? Some time afterwards. You found two wheels there? Yes, sir. One corresponded to the one you ordered, and the other was-~ A cast wheel. What was the address on these wheels? ee The address on the wheel that 7 had ordered was Wm, G. Sharpe m0 Q. A. .: A. Q. A. ‘ Q. You don't know who put it there? & No, sir. What was on the other wheel? I don't know. Not marked? I did not see any. Was there anything said about the transfer of that tag from the one wheel to the other? No, sir. I don't think there was any one present but mr. Geo. Foard's brother, CROSS-EXAMINATION. Caldwell... How mich land have you around your mill there? A. The mill tract of land, including the mill and that that I bought with the mill ise fifty acres, more or less. You stated this morning that you estimated the mill at ten thousand dollars. I ask you if your tax returns don't show 207 acres of land which includes this mill tract at four thousand dollars? Yes, sir. Six thousand, I think. It was valued I think at $6,000.00 until t put in the mill property, is my recollection, then at $4,000.00. Tax returms, Sharpe, J. M., 207 acres of land, $4,000.00. That means 1902, 1901, $6,000.00. Mr. Sharpe, the hands, I understood you to say one was ten and one twnety a month? $50.00? Yes, sir. During the time your mill was stopped and you paid those men their regular wages, did you not utilize. them in other work? No, sir. What in your opinion were they worth to you? What ser vice were they to you at that time? Pes. No service to me; no benefit to me. I estimate that he probably dome as mich as between $8.00 and $10.00. So that would be adeduction fromgwhat ---~ My. recollection is that they failed to ask me in regard to the improvements in 1901; in 1992 they did, and fr think you willfind it: at $6,000.00. You say:it would be worth $8.00 or $10.00 the use of these two hands while the mill was stopped? Yes, sir. The $26.00 spoken of here, includes the value of the wheel, the express, the telegraphic messages you sent about “the wheel? Yes, sir. $26.50. RE-DIRECT.. Long. Mr. Sharpe, what do you estimate your labor worth a day, that is,your services to your different interests out there during the time lost that particular period of time, fifty-two days, when this mill was suspended? Did you have anybody to attendto yourr store? No, sir. Wien you were out: on these trips did you have anybody there? A. No, air. It was locked up. Court. How much time did you lose? Long. Durimgthat time of suspension what were your ser- vices ‘worth? A. I would suppose that I lost close on to $4.00 a day. Court. What were your services werth? Long. At that particular pertod of theyear, and the work and labor:that you did, what were you worth to your pree ent business? A. I estimate it from a basis of a year, I closed out my business, and Tt make an estimate on it, and it would run that a day. Q. What is your estimate on it; your personal services? A. I am figuring on my personal services. Q. You think it is worth $4.00 a day? A. Yes, sir. CROSS—E XAMINATION. I ask you if you did not swear in the other trial of this cause that you would be satisfied with $20.00 or $25.00? 3 I think I did. RE-DIRKCT. Long. That was with reference to these questions you were asked about; the buggy and horse, and not your per- sonal services? A. Yes, sir, CROSS-EXAMINATION. Caldwell. And when you include here your estimate as to your services that would include the time and attention you gave the mill when it was running? A. Yes, sir. Q. And you mill isthe biggest part of your business? It occupies not more than the other business. Q. If your mill ig not running? A. I don't make as mich money. Q. Your services would not be worth as mich because you’ are not making as much money? Court, You include in that what you would have made if you had your machinery there, you would have lost $4.00 a day? A. Yes, sir. Q. As you had no machinery what was your time worth ing here after this machinery? I don't hardly know how to answer that question. I have got no figures that ~ ever kept except in the matter that yr tell you. W. R. MILLS, witness for plaintiff, testified as follows Lomg. What is your business wr. Mills? Livery business and farming. Parmer and liveryman? Yes, sir. You know the value of teams and of drivers, etc? Yes, sir; Mr. Mills, what is a reasonably good team and wagon, and two horses and a drivér worth a day in this community? It is generally the way they are loaded from two to three dollars a day. Two dollars a day just for a common days driving. Good team and driver you get $2.50? What is a buggy and a horse worth a day? From $2.00 to $2.50. It is altogether-on the driving A moderate day's driving is worth $2.0, a day. CROSS-EXAMINATION. That is the day, mr. Mille? Yee, sir. If a man would start anddrive to Mr. Sharpe's mill, eight miles, go in one-half day? “Could do it. Sixteen miles there and back; go there in one-half day? That would be hard driving. If he came back at two o'@lock in the evening you would -144 charge what? $2.00. The general price of a wagon in this community $2.00 per day? Yes, sir. N. B. MILLS, witness for plaintiff,testified as follows: Loma. Are you acquainted with J. M. Sharpe? Yes, sir. How long have you known him? For thirty years. Do you know his general characten?™ Yes, sir. What is it? Good, Have you ever had any opportunity to know anything of his qualifications? Defendant Objects. Objection sustained. Plaintiff Excepts. Defendant admitted that Mr. Sharpe's character was good. PLAINTIFY RESTS. Defendant offers in evidence the deposition of »r. Frank B. Howell. The plaintiff objects to the introduc- tion of thia deposition. Plaintiff does not object to questions and answers 1 & 2, but does object to questions 5 & 4 and the answers thereto for the reason that it appears that his knowledge was from papers, etc., and not personal. Objection sustained, and defendant excepts. THOS. U, FAIRFAX, witness for defendant, testifies, Caldwell. where do you live? Ae i reeide in alexandra, ve. Q. Wuat is ypur occupation? A. At this present time? For the last eighteen years I have been assistant checking clerk for the Southern R.R. Company, Did you Occupy that position in 1900? I did. In Jammary and rebruary; either of these months? Yeu, sir. Will you look at that paper’ What is that paper? This is a copy of the Penn. R. R. waybill to the Southern company. When? Dated February Srd, 1900. That is a way bill of what R. R? Penn. R. R. Penn. R. R? Yes, air. What ia the Southern terminal of the penn? Alexandria. Do you know where that paper came from? ~i6— A. From the Penn. R. R. people. Q. To whom was that paper delivered by the Penn R. R? To the Southern Railway Co. Q. At Alexandria? A. Alexandria, Va. Court. Delivered to the Southern by the Penn. R. R? | A. Yes, sir, Caldwell. State all the knowledge you have as to the de- livery by the penn. R. R,. to the Southern pailway of a box of cogs on the Srd of February, 1900, or any time, whether you received iiss or not? The knowledge that : have is that y did not receive any box of coge. I received one cog wheel. Who was present when the transfer or the checking out of the Penn. R. R. freight was made? I was present, sir. When goods are delivered by one system to another what is the manner---Explain to the jury of how you have knowle edge of whether they are there or not? A.When the connecting lines deliver goods to the Southern, the goods are supposed to tally with the way-bill furn- ished. Who furnished you with the waybill? The Penn. R. R. 1s that the waybill you have in your hands? Yes, sir. With that waybill in your hands what did you do? I checked this car of freight out. Thie is it, or some of it. I checked a shipment short. What did you check short? A cog wheel and box of cogs forwarded to J. M. Sharpe at Statesville, N. C. Court. When you checked out this car you found two pack-_ -~li~ ages short: A. I checked two packages short to John Sharpe, statesville, North Carolina. Caldwell. You say you checked short two pieces of freight to Joun Sharpe, statesville, N. C? I aid, seirs So your way bill then denoted Jonn Sharpe? Yes, sir. Ana you failed to find any goods in that car for John Sharpe? It aia not find any for hin. What did you find in that car? I found ome cog wheel, weight 225 pounds for Wm. G. Sharpe Statesville, N. C. and the reasom you marked short' was because your ‘bill 4id not‘:tally with the goods? Yea, sir. Then, as to the box of cogs how was that marked? The tex of cogs I 4id not: receive. You aid receive @ cog wheel, and it' was marked Wn. 6. Sharpe, Statesville/ and your way bill was Jonn gharpe? Yes, sir. Have you ever received them at that office for carriage South? No, sir. What entries, if any, 414 you make on that bill at the time? I checked tnis cog wheel short, and box of cogs short to Statesville, ™. Cc. I checked out of that car ome cog wheel marked Wa. 6. Sharpe. Q@. Did you find anything on this way bill--interrupted+ A. I found nothing on thie way bill for Wm. O. Sharpe at all.- -18- You did check out: a cog wheel marked Wm. G. Sharpe end a cog wheel marked John gharpe? Xr aid. Thie way bill calls for John sharpe, the cog wheel ie marked Wa. G. Sharpe. I checked out another. wheel weighing 175 pounds not marked at all, and I have never received a box of cogs. If y understand you, Mr. rairfax, these notations appear in your hand-wrtting? Yee, sir, that is my hand-eriting, Ip theve a memorandum kept in the office there at Alex- anéria that shewe anything about this matter? Yes, sir. This exepetion stub shows the way our short report is made up stout this same matter: What beoksis that thet you hold? Did you make that en- try yourself? Ho, sir. De you kmow who made it? Mo, sir. Where @id it come fron? Out of our offices in Alexandria. CROSS EXAMINATION. Long. Did f wunG@erstend you to say that this wheel that weighed 175 lve 4id not have any marke on it? A. Yeo, ofr. Q. The 176 1b wheel— A. That haa no marke whatever: The wheel sarked to Wa. @. Sharpe wighed 225 lbs. q. D wndepatand you that the 2265 1» wheel had no marks on it? A. 1 beg your pardon, the cog wheel that weighed 225 1be was marked for-Wa. 6. Gharpe, Stateeville, N. C., sna the sts thet, wold 276, the net ne sane statovess hi Q. You were swearing about this matter: when your: deposi- tien was taken? | A. Yes, sir. Q. Do you remember whether Or not you stated that you re- ceived these goede md put them down on the platform? I received that cog wheel that weighed 225 ibs, and cog wheel, 175 lta. And put them on the platform there? Yee, sirs Southern R. R. Cot yes, sit; The 826 ib you alee put there? Yes, sir. Both wheele andthe cogs <lsof we, sir. You 41a not? The two cog wheels. I only received those two ar- ticles. Mr. Gharpe here wante you to tell again which wheel was marked Wm. G. Sharpe? The 226 lb wheel. Ie that your hané writing to that deposition there? I have asked you three or four times which ome of these wheels was marked Wa. G. Sharpe? Tt etiil claim thet the wheel that weighed 225 was marked Wa. 6. Sharpe. Q. Did you ever tell anybody thers was an error? A. No, sir. | Q. You read it overt A. I glanesd over it. EK et4ll claim that there was an error in the stenographer taking it down. Q. You mate « mistake ome place or the other? ~20- ail A. I don't think it was my mistake. Q. If you ewore to thie thing here you swore to a mistake? A. IT still say it‘ mst have been a mistake on the part: of ‘the young ledy taking it dow. Q. Is the young lady hers? As No, sir. Court. Was that deposition written out before you signed ite A. I went to the office of Mr. -------~—-------, I had thet way bill there. I could not keep this thing in my mind that length of time, and 1 gave it to that young laa@y a@ ¢ got: it off the way bill, and r think she must have made the mistake. Long. You were before the Commissioner that took this Gepositiont A. Yes, air. Q. You had access to the same papers then that you have ac- cose to now? A. Yes, sirs Q. And you informed yourself as to how the thing was before you made your-seworn statement? A. T\ took the way bill up to the office with may Q. You informed yourself before you put down your answers to this? A. I read it off the waybill. Q. When this question "What -—--- and “Please state all that you know in regard to---- You knew that you were making a statement under oath? A. Ocerteiniy. Q. The you tried to make it according to the record before you? -21- A. Yes, sir. mas Q. Was Mr, Leste ésmes A. Yes, sir. Q. Now, you stated a little while ago to Mr. Caldwell that you @t that time, when the transfer was being made, that you checked something short om thet paper to John sharpe? The entire shipment short to John Sharpe, Statesville, Borth -arolina. Did you not swear before when this deposition was taken thet et the time you checked it shor® you checked it short to J, M, Sharpe. Jom Sharpe. “on of about February Grd, there wae « delivery to the Seuthern Rellway Campeany -- Did you ewear that? A. I gave thet lady the name as Mr. Join Sharpe. Q. Who was that fellow Mowbray? A. Mr. Mownray asked the lady to correct that. Q. Was he in the employment of the Cof A. Yes, er, Q. What was his business? A. An attorney @@ the Co. Q. At what place? A. Alexandria, Va. Q. They had « stenographer’? A. Yee, sir. @. Was thet stenographer in the employment of the Cor A, I Gom’t imow. Q. Was ae im the employment that day? A. She wae in his offices. Q. You wanted them to put it down John sharpe, and they put ~22- Q. Ae Q. A. ~ A. Q- A. Q. A. Q. A. x it down J. M. Sharpe? f @en*t see how 1 could have given the name of J. M. Sharpe, when I did not: know there was such @ man. You swear that you aid not give that naméf: I a@n*t think I did. You signed that? Yes, sir. Are you in the habit of swearing to anything that comes along? | No, sir. Were you here when the case was tried before? No, sir. You knew that your deposition was to be used? yes, sir. With these mie-statements in it going to a jury? Did you make any application to correct that wromg? No, sir. I 414 not know there was such « mistake. You had eworn to it, and it had gone on its way rejoicing? In speaking of this cog wheel and this box of cogs, I will ask you if you 414 not swearttBisg, and sign-ity end awear to it. “We received this property about Feb- ruary Sra, 1901. I laid it on the platform ——- Yes, eir. I received these two pieces of machinery . Are you peaking of these two pieces of machinery? I etill claim thet I received the two cog wheels. Wu e@mit thet you swore whet ise an thet papent You have sworn to the fact there that you got it and put it on the platform; the cogs and the wheel? Q."We received this property «bout February Sra?” Thet wae the two cog wheels. You say that thie document here is made out by you? 3 Thay way bili? Yes, sir? No, sir; Who made it out? Some of the Penn. R. R. people. Whese possesion has it been in since the Srd day of Feb- ruary. You know the property was delivered on the 2nd day of February? I don’t remeber the Gate just now. Thies peper has been in your possession ever since? In the Company's possession. Who is the Company? In Mr. Willeon's possesion, as long as he was Agent, and then in wt. ------------, How lomg in your possession? As lomg G6 7 was checking out that car. Who made the changes? Are you the man that wrote 176 over 10? These are not my figures. Do you know whe made these other changes there? am speeking about any changes in the marking? Do you know who made these changes? I do not see any changes made. You do not 6ee any changes except that? No, sir, You Go not see 226 blurred and marked? I see 225 blurred. Ie that 225 or 22.577 226. Then 226 up above? Yea, sir, The perm. rune in ite freight and turns it over to the Southern. Ie there om intervening railroed ge > ee between then? A. The Southern and Perm. connect and the Southern and B & 0. Q. B. W. & R. RP A. That is the Pen. road. A. That P. W. & B. is part pf the Penn. R. Rf A. Yes, sir. Q. This freight come in over that line? A. Yes, sir, and over the washington Southern. Q. From Christiana would it come over the P. W. & Bt A. Yee, sir. Q. De you know a man in Alexandria by the name of Joyee? A. Yee, air. Q. What is his nemet A. &. ¥. Q. Where is het A. He was their agent et Alexandria at that time. RE-DIRECT. Cala@well. You say that the only time this paper was in your possession was when you were checking the goods out, ané when you were reading from it and making your deposi- tient Yes, sir. Do you know whether this paper has been in the custody of the lew for three or four years? I dou"t know, You say that when you were giviag your Geposition here, making the deposition that Mr. Long refers to, you were reeding from this paper? A. That was @11 7 had to govern myself by, I had the paper to refresh ny mind. Q. Did not you say thie in your deposition? "I checked. —25- the shipment short for that party. aid net tally with the way bil1”. Yes, sir. That is right. The wheel was marked Wm. G. Sharpe? Yes, sir. | I ask you if you aid not swear just this: over one cog wheel with no marks?” I did, sir. "and one cog wheel marked Wm. G, Sharpe, statesville, N.C Yes, sir. . When goods are delivered in the name of Wm. G. Sharpe, how Go you Geliver then? Deliver as billed, *r am now reading from the penn. R. R. bili?" Is that what you had then? That b111 in your hands ie where ; was getting ay infor- mation. You, sir. You say your bill checked up short with that bill, and you hever received the goods? Never have received a béx of cogs. You say the cog wheel was marked Wu. G. Sharpe, States- ville, N. C? Yes, sir. JOHN H. WELLSON, witness for defendant, testifies: Caldwell. Where do you live? A. At’ present? Q. Yea, sir? A, In Washington, Q. Mhat is your business? A. I am @ Clerk in the war Department | ~26- Q. A. Q. A. Q. A. Not eonnect@d with the Southern Railway Cot. No, sir. Wheat was your business in Feb., 19007 I was freight Agent for the southern at Alexandria. What recollection, Mr. Willeon, if any, have you of this paper and the shipment that we have in controversy here? Well, sir, my recollection is. I have a recollection, which is refreshed by looking at the paper, that we had a shipment billed to John Sharpe at statesville, HN. C., one cOg wheel and one box of W cogs. We checked that entire shipment short. for John Sharpe, but checked--—-—- What do you mean by checking short? . I mean that we did not get either a box of cogs or cog wheel] marked Jofim Sharpe. Did not get enything. But we did get out of the car without any bill ame cog wheel marked Wa. G. Sharpe. Lomg. Did you get this information from somebody else. Who A. was it you got it front Mr. Fairfax. Caldwell. Geo ahead. A. a A. Q. Ae Q. As x Aleo from the records made. A cOg wheel marked Wn. G. Sharpe, end a cog wheel with no marks whatever. The paper that you hola in your hand? Have you ever seen it before? Yes, sir. Where? In our office at Alexandria. What paper ie that? A Penn. tranefer way bill. Do you knew in whoes hand writing the notations upon that bill are?f Yee, sir. What Go you see there relative to the neme that you men- -27- > tioned here, Johm Sharpe? What entries do you find upon thet way bill? I find the notation in regard to the shipment billed John Enarpe “short”, and then anothef notation for ome cog not marked, and ditto one cog marked Wm. ¢. Sharpe. In whose handwriting, Mr. Fairfax's. When did you first see that transfer bill? Immediately after it was delivered to us by the penn. R. R. People. Were these notations on there when the Penn. R. R. Geliv- ered that bili? So, «ir. When were these notations made, if you mow? They were made at the time when he checked the car. State whether or not to you knowledge @ box of cogs was ever Gelivered by the Penn. R. R. to the Southern Company at Alexandria to be shipped to Statesville? No box of cOge eo billed has ever been delivered to my knowledge. State whether or not you saw any of this shipment up there and whet did you see? Two cog wheels. Do you know what became of then? Yes, oir. What? We forwarded them to statesville. Both of then? Yes, sir. Did you ever see them after they left Alexandria? Yes, sir. Where? In the freight station at Statesville. Q. How were they marked? A. One Wa. G. Sharpe, one had no mark. CROSS-EXAMINATION . Long. These wheels that you saw here in Stateeville, Q. A. < As Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. when did you see then? I saw them when I came here to attend Court. I don't remember the exact time. Was that the time of the trial before? I have been here twice before this. I think it was the time of the trial. Just @ year ago nowt Yes, sir. You saw these wheels? pene 175 1b wheel and the 226 1m, and ene of them had a check om it? Yes, sir. Whose hand writing was it? Some one's at Christiana. Do you know whose hand writing it was? No, sir. You 4G not imow whose hand witing wes on that check? No, sira De you know who put that card on that wheel We, sir. De you know whether that card was on the 225 or 175 wheel? Only from the record that we made of the shipment. You went there and saw the thing in the depot, now which wheel was it on? I could not say positively except from our record: Q. Did you make a record at the time you looked at the card Ae on the wheel at the depot? No, sir. -29- a Ae You went back to Alexandrta to make a record abouti it? No, sirs Were they not different kinds of wheels? They looked alike. Wae not one a great deal bigger than the other? The @iffprence in the sise between the 175 and 225 would not be much. You cannot tell which ome of the wieelsa'the card was on? Ne, sir. At the time the machinery was delivered overt at Alexan- Gria, you were not present at the time it was put out on the pletfornt BD equld not eay that I was. De you know who represented the Penn. Company at the time it was put out’ there? I mmew who was the Agent. Who was it? BR. C. Joyeee Mr. Pairfax attended to that work for you? He was ea checking Clerk. How far ie it from Christiana dow to Alexandria? I neve never had any occasion to look into that. Don’t know? : No, @irs Can you tell us the date of the telegram that you got .-= frem D. M. Coiner here? No, sir. Did you reesive these telegrams sent by wr. Coiner? If Mr. Coiner-sent telegrams 7 would have received then. De you remember when they were introduced at the last trial? | Yes, sire Have you got’ thent No, sir. How many of these telegrams were there that you got from : Coinex? I could not say that. As near as you can tell? I have no recOllection of more than two orrthree tele~- grams, but I am not positive about that. Were they sent by Coiner? Yes, sir. It was relating to this machinery were they not? Yee, @ir. De you remember: when they commmicated to you that fact thet thie shipment was short? Defendant Objects. Objection Sustained. You say that you did receive as many as three telegrans from here? Ne, sir, y 434 not say. What aid you say? I have a recollection about. some telegrams at the last trial. I ask you if you did not receive telegrams from Coiner at thie place? It anewer thet if Mr. Coiner sent telegrams they would have come to me. Don’t you know that sbout’ the 5th of pebruary, 1900, you got telegrems from Coiner et this place? I think ¢ have a recollection about Zeceiving telegrams from Mr. Coiner about the shipment. Can you fix the time in your mind? Ho, air. t do not: charge my memory with these things. How long was it! after Fairfax told you about this stuff thet wae put on the platform, how long was it that you got‘ telegram from Coiner? -3s1- A. I don't know, sir. I would have Getermine that frou the records themselves. Q. You remeber that you stated before that the check was on the 175 pound wheel? I don't remember sayimg any such thing. Ie not this what you swore before: "Witness says that the de fendant-- I thought it. Re-Di rect, Caldéwell. Did you ever see that hook? A. yo@, Gir. Q- What ie it? A. Thie is the stub of an exception book, Q. Where is it: kept? A. This particular one is kept in Alexandria. Q. Who made these entries? &. They were made by a Clerk in the office, chas. Mankin. Q. What do you find. Crose-8 xamination, Lome. Whe is the agent of the Company at Alexandria now? A. Mr. -~~~----, Jas. M. Q. Thie beck that you have there you say is an exception book? A. Yes, sir. Q. What is an exception book? As Bt i6 to make « report of any Gifference in freight be~- tweem the way it checks and the way it is billed. Q. Where Goes the man that makes the entries get his in- formation? OF Ue con Wena Way. WEIR, Oe Sve She MAD) ae ARe aye c- ‘3 4 “r freight ie checked from the car. ‘ Q. He got his information from the transfer way bill? Court. You mean to say some Clerk goes in here, and takes this way bill, and he hands it to this Clerk and he puts it down on the exception book? A. Yes, sir. Court. The same Clerk or another clerk? Long. Thie is a Gifferent clerk from the man who checks it. off when the goods were received? A. Yee, sir. Q. He Gia@ it from papers handed him by sother ‘person? A. yes, sir. Re-Diredt. Caldwell. Do you know who made the entry in there? A. Yea, sir. Q. Do you know his hand writing? A. Yes, sir. Q. Do you know where it has been kept? A. In the Alexandria freight office. Cros eSxanination. Long. When was your name signed there? A. At the time the exception was made cut, @. You had thet dene yourself? A. Yeo, Gir. Re-Direct. Caldwell? What date Goes these entries bear? A. They show the date of the Penn. C°., February Sra, 1900. Q. What entries have you there? A. The first entry that we have here on this subject is. The FP, W. & Bs way bil] ied billed to John sharpe-~ Q. What ie the mumber of that way bill that you held in your handt A. 104. 194. What record have you there? "@ne box W cogs, checks none. j§ Cog wheel, checks none.” Turn to your next entry. What do you find? The next entry showe that we received ane cog consigned to Wa. G. Sharpe, statesville, N. C., with nothing billed to him. Any other entry in your book? Yee, eir. Defendant introduces pages in this book marked Exhibits 1, 2 and 3. : Is there anything elee you know about this? Was the pox of coge ever’ Gelivered? No, sir. Croee-Rxanmination. Long. The writing on thia book marked 1, 2 and 5 was made by a Clerk in your office? Chas. Mankin. Ie he living? Yes, eir,; Where is heft Alexan@r ia. In thie BR. R. office? To the best of my knowledge. In the Company's employment? So far as I know, Were you present when he did this writing? Noe in hie immediate presence... No, sir. Defendant Resets. Willeon recalled, and testifies: -34- Long. Are you able to state what was the division of the freight tell between the Pem. R. R. and Southern R. R. on thie shipment here from christiana to Statesville? A. I can tell that by reference to the billing. Q. Will you get the billing and tell it? A. Yes, sir. Q.H@wummenh for the shipment from Christiana to Statesville that wheel and box of cogs would be the pemsylvania's part* and how much the Southern's part of the toll? A. There is no division shown on this way bill; the bill fran Alexan@rie to st stesville. Q. Was there a division between the two Companies? Court. If a piece of freight weighing, say 1,000 ibs was ahipped from Chrietains, pa., to the city of Statesville over the Penn. & Southern, and the freight: charges should be $10.00 would there be a division of freight when paid in by the consignee? A. Through rates are not-- Court. Would there by any division? A. Cettainly the southern would get a part andthe penn. « part. Lang. Why did you hesitate so long about answering my queation? Can you state approximately what tha di- vision is between the two? At this date I camot: Where would the freight be collected in Christiana or here? This particular shipment, where would the freigh be collected, at this end of the line, or the other end af the line? On thie particuler shipment the freight was billed to be collected at Statesville--no rule about that. Who made that division; the agent at Statesville, Alex- andria or how? ‘Ae Q. The Penn. R. R. bille the shipment to Alexandria. How would this money pass out through your hands or- through the hands of the Agent at Alexandria? ThecPennm. R. R. Billed the freight to Alexandréaiat their rate to Alexandria. We re-billedit: from there to Statesville at the Southern rate: It would be so mach South of Alexandria and so much North, When that freight is collected here who makes the dis- tribution? Pray tell me who pays it out? Who pays it: out? Yes, sir? What do you mea? Suppose that that freight was $5.00, and $5.00 belonged to the Penn., md $2.00 to the Southerm, whose duty was it to pay it over to the Southern? Mr. Coinerr accounts for the rates paid out at his station, Why did not you tell me that without all your fine spun theories about it? Re-Direct. Caldwell. No fine spum theory about “paying out” or “accoum ing for*. These goods were billed to Alexandria the A. end of the penn. R. R., and they were re-billed there by the Southern to Statesville, end if the freights were collected at Statesville, you don"t know anything about that? No, sir, Q. The penn. R. R. would be entitled to something forr carry- ing it to Alexana@?fie, and the Southern for bringing it to Statesville? A. Yes, air. Plaintiff offers in evidence portions of the depo- sitions of Fairfax. : Plaintiff offers in evidence date of Summena, 10th of october; 1900. | plaintifr offers in evidence portions of Thos. U. Fairfax's deposition in contradiction, as follows: Page 50, Printed Record. Jamea M, Sharpe, plaintiff, recalled, and testified: Long. State how long it took to obtain a shipment of a cog wheel from Christiana, Pa., to this point by express? A. 20th, it was ahipped, and , received it the night of the 22na, and hed it: running the 25rd. Crose-Exanination. Caldwell. By expresa? A. Yes, sirs Q. Not by freight? A. ™®, sirs Mr. Willson recalled and testified: Caldwell. Did you ever see that card that you hold in your hand before? Defendant introduces tag in evidences. As. Yea, sir. Q. There? A. I first eaw it on one of the two coge at Alexandria. Q. Where next? A. On @ wheel in the freight station at Statesville. Q. Will you please read the address am that cara? A. Wa. G. Sharpe, statesville, N. C., rredell County. Q. Any a@tiipping directions? A. Yeas, air. Croes-Exanination. Longe Do you know who put that card on the wheel? A. No, sir. Q. When it was put on the wheel? A. No, sir. Q. In whose hand writing it is? A. No, sir. Q. Which wheel. it was on? A. Could not say positively. PLAINTIF? CLOSES, DEPENDANT CLOSES. MOLIan tnexB-ee01 Tleenw 63 no Hino tent suq Or wont woy of .y107 eti® ,OH .A fieeriw eit oo tuq saw 32 nedW ip. 328 .OK .A Yer Si yaltize Dred eaoiw nl .D tke 4oK .A is “ * § , . y . ere. é SSI, eset SG RATERS DF pees ae . J , iow ye oa ye Var po Pinner: i, me Fie mos we veel: Api, SR UNA tatvigt ge ae on wpe Sanaa a ck mae Ie tetipay ae edhe al eID VT ITHIAIS -AMBOID TKACH2IFa North Carolina, In the Superior Court, Iredell) County. Before Hon, Walter H. Neal, Judge. James M. Sharpe, i Ve Plainti?*’*s Statement of Case on Appeal. i Southern Railway Company, This is a civil action tried hetfore His Honor, Neal, Judge, and a iury, November Term, 1902, Iredell Superior Court, upon the following pleadings? North Garolina, In the Superior Court. Iredell County. November Term ,1900, J..M. Sharpe, vs Gomplaint. Southern Railway Company. [ The plaintiff, complaining, alleres? Pirst.- That the Southern Railway Company is a corporation created under the laws of the State oF Virginia, ane at the times hereinafter mentioned was in existence and doing business as a comuon carrier of freights and passengers for hire hetween points North and Rast and the towm of Statesville, North Carolina. @econd!- Phat in the month of January, 1900, the plaintiff, throuch his agent, secured the shipment to himself at Statesville, North Carolina, of certain machinery which he was then in need of and obliged to have wherewith to run and operate a valuable roller flouring mill in Iredell County; that the said machinery consisted of a cog-wheel and a box of cOgs, and the same were shipped to plaintitr dy the Christiana Machine Company, who delivered the same to the agent of the Pennsylvania Rail- road Company at Christiane, Pa., consicnec *o plaintiff, on or about the Beat of Pebruary, 1900. 4 -2- @hira:- That he is informed and believes that the said wheel and box were immediately carried by the said Pennsylvania Railroad Company and delivered to the said Southern Railway Company at Alexandria, Va., one of the northern terminals of the defendant, on the lst of Pebruary, 1900; that the Southern Railway Company received the same from the Pennsylvania Railroad Company under contract and agreement to deliver same to Plaintit® with all reasonable dispatch, but utterly failed and neglected to deliver the said property, so that the plaintiff was put to the necessity, in order to start his mill, to make a second order for the said goods, and have the same sent to him by express; but this was not done until about the latter part of March, 1900, as plaintif® was making unavailing efforts from time to time to gat his goods delivered to him by the defendant, and it was not until some time after the plaintiff had secured the goods upon a second order that he learned from the defendant that it had part of the roods supposed to he for plainti?? at the depot at Statesville, but this was too late to be of any benefit to plaintiff. Part of the roods has never yet been brought to Statesville. Pourth:- Plaintiff is informed and believes that the said Pennsylvania Railroad Gompany and the defendant herein are associated together as partners in shipping freights North and South, to and from Statesville and other points, and in such traffic arrangements the one acts as the agent of the other, so as to furnish @ through freight line, each sharing pro rata of the profits upon these contracts of affreightment,an® that defendant received and accepted the property aforesaid for delivery to the plainti”f upon the terms agreed on between consignee and the Pennsylvania Railroad Company, and is guilty of negligence in failing to deliver same promptly. That the coods should have been delivered safdly to plaintif” at the cepot in Statesville within two days, or by the evening of the 2nd of Pebruary, 1900, after defendant received the same, to-wit, the lst of February, 1900, Pifth:- That the plaintiff*s valuable flouring mill and the machinery connected therewith was suspended on account of his not having the machinery aforesaid on account of defendant*s negligence for about a period of two months; that he was put to expense on account of his hands, non-user of the mili-plant, failure to obtain any profits from - «j= the use of the mill, trouble and expense in trying to get other machinery and in getting the sage, and in looking after and trying to get this machinery delivered from defendant, and that he has been endamaged by reason of the default of the defendant in the sum of Pive Hundred Dollars. Wherefore, plaintiff demands judgment of the defendant in the sum of Pive Hundred Dollars, and the costs of this action, to be taxed by the Clerk of the Court, and have such other and further relief as he may be entitled to. B. F. Long, Attorney for Plaintiff. Verified Oct. 10th, 1900, North Carolina, { In the Superior Court. Iredell County. November Term, 1900, J. M. Sharpe, i vs | Answer. I Southern Railway Company. The defendant, answerin-; the complaint in this cause, says: 1. That the allegations contained in the first paragraph are true. 2. That, as defendant is informed and believes, the allegations contained in the second pararraph are true. 3. That the allegations contained in the third paragraph are not true, and they are denied, 4. That the allegations contained in the fourth paragraph are not true, and they are denied. 5. Defendant has no knowledge or information sufficient to enable it to form a belief as to the truth of the allerations contained in the fifth paragraph, and therefore denies the same, 6. nd for a further answer and defense to said action, defendant says that plaintiff’s goods were shipped in two packages over the Pernsylvania Railroat on Pebruary 1, 1900, one package being a cog-wheel a pounds, and the other being a box of cogs; that said shipment a —4— was in a wreck on the Pennsylvania Railroad, which delayed its arrival at Alexandria; when it finally reached Alexandria and was turned over to the Southern, the cog¢-wheel was marked W, G,. Sharpe, without any destination, while the box of cogs was not marked at all. Not knowine the destination of the package marked "W, @, Sharpe", and not knowing the name of the consignee or destination of the package, having no mark On it at all, the goods were held at Alexandria for some time, while the defendant was trying to ascertain oO what point to ship them. When it was ascertained that J. M. Sharpe lived at Statesville, the packace marked "W. G. Sharpe® was immediately forwarded and tendered to fo (pLanroe— him, but he refused, the same. As to the other packare, defendant is informed and believes that payment for the same was tendered Mr, Sharpe . Wid by the Pennsylvania Railroad, which #m refused. 7. And for a further answer and defense to said action, defendant says that, at the time of the shipment of said goods, the consignor and the Pennsylvania Railroad Company enturcd into a written contrect, in which contract it is stipulated as follows: "No carrier shall be liable for loss or damage not occurring on its own line, or its portion of the throurh route, nor after said property is ready for delivery to next carrier of the consignee.*® That whatever loss or injury plain- tif? sustained by reason of the failures to deliver said foods to him in apt time, was caused by the Pennsylvania Railroad Company, and for such injuries, as defendant is advised and believes, it is not liable. without day and recover its cost. Charles Price, L. C. Galdwell, G. FP. Bason, Attorneys for Defundant. Verified Becember Sth, 1900, ale North Carolina, f In the Superior Court. ‘ Iredell County. November Term, 1901. J. M. Sharpe, vs Replication. i Southern Railway Company. | The plaintif*, replying to so much of the answer as he is advised may be necessary, says: 1. That he denies that defendant has set out the facts as they Occurred between himself and its arent at Statesville depot with regard to the machinery, in paragraph 7 of answer, and he denies baat ‘he ever refused to receive the cogewheel, but, on the contrary, was willing to do so provided he waived no rights because of damage done him for non- delivery before tender; and he denies that he declined to accept payment from the Pennsylvania Railroad for the cogs, except that, through his attorney, ne is informed that ne has Geclined payment of a nominel sum for the cogs, which would in effect destroy his rignt of action. That, as a matter of fact, as plaintiff is informed, the Pennsylvania Railroad Company delivered the cogpewheel] to defendant one day after it was shipped, and rep ate demands for it and other machinery in Statesville depot by this plaintit” Dies the defencant full notice who was the consignee <- what was the property - and defendant admits in ts answer that it cot all the goods, and plaintiff alleges that it was gross negligence not to have sent same forvard. B. F. Long, Attorney for Plaintiff. Verified January 15th, 1901. Mis Honor submitted *he following issues to the jury and the jury answered the ist, 2nd and Srd anc mace no response to the 4th and 5th as fol’ ows: (1) Did the defendant receive from Fhe Pennsylvania Railroad Company the cOg-wheel referred to in the complaint, for the purpose of carrying the same as alleged in the complaint to the plaintiff at Statesville, == N. C., about the’ lst or 2nd of Pebruary, 1900? Answers Yes, but not properly marked. (2) Did the defendant receive from the Pennsylvania Railroad Company the box of cogs referred to in the complsint for the purpose of carrying the same as alleged in the complaint to plaintiff at Statesville, N. Coy about the lst or 2nd of February, 1900? Answer: Wo. (3) Did the defendant after so receiving said cog-wheel for delivery to plainti*? fail and neglect to forward and deliver same to plaintiff with reasonable dispatch at Statesville? Answer: Wo. (4) Bid defendant after receiving the box of cogs for delivery to plaintiff fail and nerlect to forward and deliver same to plaintiff with reasonable dispatch at Statesville? No answer. (5) What damace has plaintiff sustained by reason of the non-delivery of said property? No answer. Plaintiff offered in evidence, first the deposition of B. P. Garrett, which is as follows: Q. What is your name, age and place of business? A. Qiwood P. Oarrett, age forty-six years, place of business at @Ghristiana, Lancaster Courty, Pa. Q. What business were you engaged in in January and Pebruary, 1900, and until the present time, and if you Were agent of the Pennsylvania Railroad Company, at Christiana, Pennsylvenaa, state how Jone you have been engaged as such agent? A. As agent I have heen here six years, but I have been employed by the Company nineteen years. @. ook at the bill of ladinr now handed you, marked °Exhibit® 4", dated 2n’ month lst day, 1900, purporting to consirn one cog-wheel and one box of cogs to J. M. Sharpe, Statesville, N. ©., and signed by &. P. Garrett, agent, and state when, where and under What circumstances this paper-writine was eee =-7- made out - who sirned it, and in what capacity, and state all that you know about the execution of the paper? A. This ee ladins Was made out at the Christiana Machine shop, dhe q yy ek Ag ny ig nations a ck brought here and, the date the shipment was made, I signed it as agent. That is all I know about the execution of the paper. Q. Who delivered the cog-wheel and box of cors to the Pennsylvania Railroad Company? 4. It was done by the Machine Company's team - Phe Christiana Machine Company. Q. State if your company made out a way bill with the proper name of the consignee, J. M. Sharpe, naming the coods and destination in conformity to the bill of lading? A. Yes sir, I did. Q. What was done with these goods by your company, and to wham did you deliver the roods, and when did you deliver them? (Ohiected to by Mr. Dicson, unless Mr. Garrett of his own SF knowledge knows what was done with the goods after they left this office.) A. I don*t have any knowledce of the -oods after they left here. Q. State if your company cid every‘hing necessary on its part to hand over these goods to the Southern Railway Company at Alexandri~ with proper direction to J. M. Sharpe, at Statesville, North Garolina® (Objected to by Mr. Bickson unles- Mr. Garrett of Ais own knowledre knows what the Company did with the goods after they left Christiana, Pa.). A. We issued a regular tracer after the coods when Mr. Sharpe notified the Christiana Machine Company that the coods had not arrived. We sent a tracer after them and traced them to Alexandria, Virginia, wt atate anythin: else that you may know about this transaction? A. We done all we could to trace tha coods. Cross-examin«tion, By Arthur @. Dickson, Bsq., on behalsS of defendant. Q. Do you know of your own knowledge, Mr. Garrett, what was done with these goods efter they left Christiana - you never saw the foods again? 4. Wo sir, Not to my knowledge I did'nt. ulin @. If there had been a wreck on the railroad in which these coods were injured yeu would'nt know in what condition they were delivered at the other end of the line? A. They make report back here the foods were damared. Otherwise we would not “now anything shout it. : Q. You would not know anything of your own knowledre? A. No sir. Q. You speak of a tracer being sent after these goods, do you know what report was mace? A. No, I can’t recall, but those tracers are in the hands of the Tracing Department. Q. You have'nt got that tracer? A. Wo sir. Et may have come back here, but I have no recollection of it. Q. What sort of machinery was this, Mr. Garrett? A. An iron cog-wheel and a hox of wooden cogs. I don*t know whether 44 a” is called a mortise wheel or a cog wheel out and out, I could not say, but I suppose it is. Do you know the value of each packare? No sir. wreck on the road in Which fo Q. How was this packed? A. The cor-wheel waa not packed at all is my recollection, Q. Were the cogs packed? A. In a box. Q. How many packages then were made out of these articles? A. Two. ~ A 8 Do you know whether or not there was these foods were damared? A. No sir. Q@. @o you know anything about the condition in which the goods were @elivered to the arent of the southern Railway at Alexandria? A. No sir. q. You oould not say then whether they were delivered in good condition or in bad condition? A. 2 don't know anything about the condition of them, q. Do you know whether the Pennsylvania Railroad Company offered to pay for injury to these goods? -9- A. I don*t know, Q. Did I understand you to say you cid*=t “now whether there had been & wreck of the train which carried these goods? A. I don*t know. Q. After these foods lief stiana you have no direct knowledce what happened to, them? A. No sir, Q. Is Shem then all you know about this metter?® A. @hat is about all I think. Q. Did you receive any repor* from the Company with recard to these foods? A. Z have no recollection of anythine. RB P. Garrett. Verified May 6th, 1901, "Exhibit A® on the face thereo? reads as follows? Bill of Ladine. Pennsylvania Railroad Company. Received subject to the classification in effect on the date of issue of This Bill of Ladine, at --<<--<-+--+-+++-+-+-++---- Station, 2 Mo. 1 1900, from Christiana Machine Co., the property described below, in apparent rood order, except as noted (contents and condition of contents of packages unknown), marked, consirned and destined as indicated helow, which said Company arrees to carry to said destination, if on ite road, otherwise to deliver te another cerrier on the route to said cestination. It is mutually agreed, in consiceration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (see condi- tions on back hereof), and which are agreed to by the shipper and accepted for hi self and his assigns as just and reasonable. rr eee eee ee ee eK Oe ee eer ree Tr Fr KH Free Kr Hr HF FF eee eC eee ee eC ee eee ee eee eee HO ewe eee ow we Marks: Description of Articles. Weight . Subject to correction. CCCP OR eee tween Consignee: J. M. Sharpe 1 Cog Wheel 224 1 Box Cogs 10 Place, statesville County, Iredell 309737 State, N. C. Route-------- itnpudeni nme a Charges ad . eK we ee om 0. *-— ee em oe 8. , Garrett, Agent. -10- Plaintiff next offered in evidence the second paragraph of the complaint and the second paragraph of the answer thereto and the sixth paragraph of defendant's answer which is set forth in the record above, Plaintiff ne at offered the deposition of Edwin C. Joyce, which is as follows: Q. In what business are you engaged now, and What was your business, and where were you engaged during the months of January and February in the vear 1900? Agent of the P. W. & B. R. R. at Alexandria, Virginia. State whether or not you were during the months of January and February 1900, and are now, the custodian of, and have access to all the records kept in the office of the Pennsylvania Railroad Company at Alexandria, Virginia? During the months of January and FPebrurry I was then, and am now the custodian of all the records of the P. W, & B. R. BR, Examine your records and states whether or not there Was a cog wheel and a box of cogs shipped to your station (Alexandria) on or about the and day of February, 1900, way billed from Christiana, Pennsylvania, over the Pennsylvania Railroad, and marked to "J. M, Sharpe, statesville, N. C.*? There was. State in what condition the cog-wheel and box of cors Were when they reached Alexandria, and state the exact name and address marked on said coods when they reached Alexandria? This shipment did not pass under our personal inspection when delivered to the Southern Railway, it moving through Alexandria in a throurh car, State if you as agent for the said Pennsylvania Railroad Company, or any one else for you or for said co pany, ever delivered the said cog-wheel and box of cogs to any one, and if so, to whom, and on what date as shown by your records? The records of the P. WV. & B. R. Re. af Alexandria show that this shipment was billed to the Southern Railway at Alexandria, on Pebruary Srd, 1900. In what condition was the cog-wheel and box of cogs when you Gelivered them to the southern Railway Company, and what was ais the exact name and address marked on said goods when they were turned over by the Renrsylvania Railroad Company to the said Southern Railway Company? A. Bee answer to question number five, Q. State anything else that you may know about this transaction? A. There is no further information I can rive, Edwin C. Joyce. Verified May 27th, 1901. Plaintiff next offered the testimony of James M, Sharpe, the plaintiff, who testified -« xX I live 8 miles from Statesville, On the 23rd of January, 1900, the wheel in my mill was bro’en and I came to statesville and ordered the wheel and box of cors in controversy by wire throuch my arent. I received a Bill of Lading dated Feb, lst, 1900 and came to Statesville on the 3rd (saturday) for the machinery. Saw cefendant's arent Mr. Coiner,. Mr. Coiner said he did not think it would reach here until the next Monday, Feb. 5th, I went back again 2mx and the machinery had with. not arrived, metierkh the wheel nor the cors. Mr. Coiner said he would look after them, I came back the next day and I have with me the Bill of Lading, and handed it to him and he took it and laid it down before him at the wires and wired about it; he said he would telegr:ph and see about it and let me know, Later in the day on that day I went back to the defendant's danat anc could not find Mr. Coiners had made known to Mr. Coiner the condition of my mill and the necessity for me to have the machinery promptly delivered. He said he would do all he could, I never got any definite information, I only got information at depot that they claimed there was a wreck. I came to Statesville to see about it 20 or 25 times and never received any information except thet the wheel and cogs did not come. On the 23rd of March I was notified by postel card that the wheel had come. In the meantime I had Ordered another wheel by Express and started my mill with it. On the same day (the 23rd of March) that I received the card from Mr. Coiner. I went to the depot after that - March 23rd - and saw the wheel < they tendered me that wheel by card. Mr. Coiner asked me if I was going to take that wheel. Told him would leave the money with my Attorney and if it did not interfere with my rights I would take it. I left the -12- money With my Attorney. They did not have any box of cogs. That wheel I ordered was for my mill - could not run my mill without that wheel and the cogs = dt took both to run the mill = I received the wheel I had ordered by Express (not the wheel “first ordered) 22nd or 23rd : pf March and started my mill with this one I got by Express. It was a roller mill, 40 barrels capacity, but I will say that I don't think it would exceed 355 barrels per day - the patronage was good and improving as I went on - it was a new mill and in food running order - located 6 miles North of Statesville on the Wilkesboro road - value of the property I estimate at $10,000 ~- I had two hands, Heffner and Matthews, who stayed in the mill - one the miller and the other worked under him. I paid Heffner $20.00 a month and Matthews $10.00 per month, I kept up their pay during the suspension - they were employed by the year. In order to get the cog and wheel ordered by Express 20th ‘of March and received 22nd of March I paid $6.00 Express and $20.00 for the # wheel, making $26.00. I sent teams 5 times after the machinery, 5 days at $2.00 per day. Took day to come from mill to town and back. Telegram for wheel and cogs 20th of March cost 50 cents. When I came after the wheel and cogs 20 or 25 times I came myself, either on horseback or in a@ bugry. Sent the two-horse team in five times with driver, worth at least $2.00 per day. During the time I was here looking after cogs and wheel I ought *o have been at home. My time was valuable. The cog wheel ordered and not delivered to me was worth $20.00. The wheel shipped by freight was a donation made by the Salem Machine Works who ordered the same sent to me by the Christiana Machine Works. When I went back ten days afterwards there were two wheels at the depot, the address on one was W, G. Sharpes saw no address on the other wheel, Cross examined, says: The mill and mill tract is 50 eeres more or less. My tax returns show 207 acres of land in which is included the 50 acre mill tract and is assessed at $4000.00 until I reported improvements when it was assessed at $6000.00. Hands paid $30.00 per month, one $20.00 and one $10.00 per month. it is true pending the suspension some work was done but not much. Did about $8.00 or $10.00 dollars worth of work for me during the time, ei saat -13- Re Direct. The time lost in looking after this machinery by me - I lost $4,00 per day, but in that is estimated the loss of my business, I testified on the other trial that I would be satisfied with $20.00 or $25.00 for the trips to Statesville, but plaintiff did not in that trial put in the eleim for his personal services, Plaintiff next introduced W. Rs Mills who seys he is a farmer and a liveryman and he says a reasonably good team, two horses ande driver, worth from $2.00 to $3.00 per day = $2.00 on an averare - good team $2.50 - horse and burgy worth $2.00 per day without driver, N. B. Mills testified that the general character of the plaintiff is food, Plaintiff offered to prove by this witness that he knew the business qualifications and the character of the business of plaintiff and what his services were reasonably worth per day. Defendant objected. Objection sustained and the plaintiff excepted. lst Exception, Plaintiff had sworn J. H. Hoffman, WV. A. Thomas and J. H. White and proposed to offer them for the same purposes for which he had offered N. B. Mills and defendant's counsel admitted that plaintiff's character Was food, and the testimony of these witnesses being excluded as to the value of services, they were dismissed. Plaintiff rasted his case. Defendant's Bvidence: Defendant first offered deposition of Prank B, Howell, portions of which allowed go to the jury are as follows: Question 1. What is your name, residence and oecuction? Answer. Prank D. Howell, 1924 Chestnut Street, occupation Rail- road official. Question 2. What was your occupation January, February and september 1900? Answer. Preight Claim Agent for the Pennsylvania Railroad Company. Question 5, What information if any did you give to James M. sharpe or his Attorney Benjamin FP. Long concerning the box of -14- coOrs and was that information correct? Answer, I have no recollection of communicating directly at all to James M. Sharpe. I did sdvise Mr, Benjamin F,. Long that the box cf cogs had been destroyed while on the lines of the Pennsylvania Reilroad, and that upon presentation of a proper bill the Pennsylvania Railroad would pay for them. This information was correct. Question 6. If you should state that you communicatec any information to either Mr. Sharpe, or Mr. Benjamin FP. Long, will you please state how you gave it and the exact words used by you, anc what was done with the communication? Answer, My communication was solely with Benjamin F. Lone, and wholly in writing and was contained in my letters dated September 24th, and December 12th 1900 and May 14th, 1901. I annex hereto copies of these letters. These were forwarded to Mr. Lone in the usual way by United States Mail. Frank D. Howell, Philadelphia, Sept. 24th, *00, 631213. Jas. M. sharpe. é Mr. Benj. F. long, Statesville, N. Cc. Dear Siri- Reply ine? to your favor of August 7th, relativ e to above claim, 1 beg leave to advise that our investigation shows we promptly —~— delivered to the southern Ry. the cor wheel but they failed to forward fraldic hat it promptly, seéting it at junction point for some reason upknown to us. The box of cogs which formed part of the shipment and which we failed to deliver to tne Southern Ry. we are ready to pay for upon presentation of bill at invoice price, If you Wiis nave your client make a bill against us for the value of the box of cogs, and have him attach a certified copy of the original invoice or the original itself, we will be glad to put same in course of payment. Yours truly, (si¢ned) FP, D, Howell, McC, P.C.A, iio Philadelphia, December 12th, '00, 631213. Jas. M. Sharpe. Machinery. Mr. B. F. Long, Statesville, N. Cc. Dear Sir:- Replying to your favor of November 23rd, relative to above claim, I have to advise this matter is in the hands of Mr, Price, Division Counsel, Southern Ry. Co., Salisbury, N. C., and would request that you communicate with him in the case. Yours truly, (Signed) F. D. Howell, FP. C. A, May 14th, 1901. 631213 Jas. M. Sharpe. Machinery. Mr. B. F. Long, Statesville, N. vu. bear sir:- Replying to your favor of the 10th ultimo. I have investige- ted this matter and find that the shipment was made from Christiana, Pa., February lst, 1900, properly consircned to J. M. Sharpe, Statesville, N. C., and so waybilled, An exact copy of the transfer to the Southern Ry at Alexandria shows tlie property to have been billed to them precisely the same, namely, J. M. Sharpe, statesville, N. C. The name of our egent at Alexandria who would prove this fact is &. C. Joyce and a letter addressed to Mr. Joyce at that point will reach him. Mr. Joyce could better than I, give you the name of a capable person to act as commissioner at Alexandria, Va. Yours truly, FP. D, Howell, JOUR ‘ P. Os As Defendant next introduced Thos, U. Pairfax, who testified: I live in Alexandria, Va. Was Assistant Checking Clerk for the Southern Railway Company in January and February, 1900. The paper (Exhibit Z) is copy of the Pennsylvania Railroad's way bill to ¥ “16- Southern Railway dated Feh., 3rd, 1900. Alexandria is suucbiece terminal of Pennsylvania road and northern terminal of the Southern, “This paper, or Way bill, was delivered to Southern by the Pennsylvania Railroad Company. I received one core wheel - no box of cogs - I was present when th: checking was going on on that day The Pennsylvania furnished me with the way bills and the goods Were checked out. I checked out this car and found 2 packages short for John Sharpe, Statesville, N. C. I found one cog wheel marked W. G. Sharpe, 225 pounds - hox cogs not received =- box wares John Sharpe (the way bill Exhibit Z, was here introduced by defendant). I checked out another wheel, 175 pounds not marked at all. These notations appear in my hand writing on the way bill. Cross examination. 226 The 175 pound wheel was not marked at all = the @6@ pound marked Wm. G. Sharpe, Statesvill+, N. C. He admitted that his deposition had been taken in July 1901 in.this case and had been read on the former trial and he had stated in that deposition (the same being read to him) that the Pennsylvania Company “billed to the Southern Railway Company a cog wheel weirhing 225 pounds, 1 box of w. cores which were billed in the name of J. M. Sharpe to Statesville, North Carolina. I checked the shipment short for that party; I mean by that that these articles so billed by the Pennsylvania Railroad Company checked short for that man; they did not telly with the way bill. I checked over one cos, vith no marks and one cog wheel marked Wm. G. Sharpe, Statesville, North Carolina. When I say checked over,I mean that the billing did not tally with the name given on paid way bill. When goods are delivered in the name of one party, we must deliver them as billed. I am now reading from the way »5ill of the Pennsylvania road in possession of the Southern Railway Company: 1 cog wheel 225 pounds, 1 box of w. cogs 10 pounds. I received out of the same car one cog wheel, 225 pounds, with no marks, and one cog wheel, 175 pounds, marked for Wm. G. Sharpe, Statesville, Nortn Carolina. We received tuis property about Peb. Srd, 1901; I laid it on the platform by the order of Mr. Wilson, our agent et that time, while the matter could be straightened out with the Pennsylvania Railroad"; Witness stated that the discrep- ancy in his deposition from his present stateneis was due to a mistake of the stenographer who took down his deposition; that Mr. Marbury the ak ts Commissioner who took his deposition was the Attorney of the Southern and his deposition was presentec to him type written by Mr. Marbury and that he read it over defore ke signed it, but the stenographer had made a mistake. Exhibit Z. offered by defendant, rea@s as follows: No. 194. Pennsylvania Railroad Company. Philadelphia, Wilmington & Baltimore Railroad Company, West Jersey « Central Railroad Company. wage N. C. Cal &2 _ Alexa. — ce 5 MM ee Be 1900. Merehandise delivered to the 325 southern Railway Company. (Way-Bill) (Car) x x x (no.) - 75 - (Date) - 2/. - (Initials) --------- =| (Numbers) Tou (station “rom) + Christiana - (Consignor) - C. M. Co. = (Censrinee, Destination and Marks) - Jno Sharpe Statesville, To Oye (Nese: iption of Articles) + 1 Cog Wheel - (Weight) - ba 4 (Preight and Charges) - 765 or 165 - (Through Rate) - Pd. O@ - (Proportion Beyond) - 87 - On second line of bill referring to these shipments lo. 73 date 2-1 from station Christiana, consignor ©. “. Co. consignee and destination marks Jno “harpe, “tatesville, ''. ©.» there appears in the column under hea@ of Initiale the figures "63" and under the head of ‘Numbers the firures "64", and under the head of Deseription of Articles "1 5. W. Cogs”, and under the head of Weight these figures, "10" in ink and °175" written in peneil over the figure "10". In the column under the head of Freight and Charges figure "3" - under the head of Through Rate the figures "42" - under the head of Through Rate “he figures "76" - under the head of Proportion 5eyond is the top figure "18" and written g@ider it the figures "66". There are a number of marks and certain writing on the face and back of the said paper, which it is impossible to reproduce except by the exhibition of the paper itself, and plaintiff agrees that the same may be sent up with the record of the case on appeal. Defendant next introduced Jno. H. Wilson who testified: I live in Washington, D. C. Am now Clerk in War Department- in Pebruery 1900 I was Freight Agent of the defendant at Alexandria. This way bill - we had way billed to us one cor wheel and box Ww. cops consigned to Jno. Sharpe, Statesville, N. C. This entire shipment was checked short - that is, we did not get either wheel or box above referred to = we did get out of the same car one oog Wheel - this information I got from Mr. Yairfax. Tuis papes - ExhibitZ. - is the Pennsylvania Railroad tramsfer way bill to the Southern - I find a notation on this bill showing the shortage - no box of cogs had been delivered by the Pennsylvania to the Southern so far as I know. The book handed witness by defencant is known as an Exception Book - book showing shortage transfers - transfers from other roads to the Southern; Witness did not make the enttres in this book - some one of his clerks in the office made them - witness does not know when they were made further than what appears on the face of then - witness gigned his name to them but does not remember when. Second Exception. ee —— _——— > Plaintiff excepted to this evicence as substantive evidence, but did not object to it if offered to corroborate the witness Wilson who swears that his signature appears at the bottom, Cross-examinat ion. - The witness states that in making shipments from Christiana, Pa., to Statesville, Norti: Cascliua as in this case over the Pennsylvania & Southern roads there was a division of the freight charges in the carriage between the two comanies. On this shipment the freight charges Were not collected in advance, but were to be collectec at this end of the line. Defendant offered in evidence BxhibiSel, 2, and 3S, from the pages of Exception Book referred to by J. H. Wilson, as follows: a! WER Ss, ae fiigigs Porm 508 ¢. ae Agent's stub. Agent's No. 574, SOUTHERN RAILWAY COMPANY. Alabama Great Souther,Railroad. REPORT OF FREIGHT "Over," “Short,” "Damaged," “Refused or Uncalled For", and “Improperly Billed." 2 - 20 - 1 De eet neh Reape sen A A A A LE AS LG EA OG: CE AO OE OL LS To Ba ©. Ce. ——<H <~<~—3— awww eo = a ee sen sienna catty eae setselly,ceitscitns sien ebinle ally aa ae a A LL LS, LOL Foreign Way-Bill No, 194 Date, _ 2-3- 1900 Sat ein ea ee ai el OLD Cele hil NE I A A A, OL LI TT Prom ssw WP,y,:«s WS. To sou A ee —— ee ee ne clay ll le A A lt A A AO ALLELE LL ILD Southern Railway or A.G.8.R.R. Way-Bill Reference. NU a teak can MNF The Ris Act ty es ee NS age 2 ek a a Consisnet ___ Jno Sharp ___ c dee sh Site ce Se cna Oe Destination _| DUOC RON ee (0 Sp LE aA SLSR te Uae LIL MOON Se PRT Os A ae ae ae Marks _ a cf : . ‘an a a Ss Comte) i a Ra Articles Billed. Articles Received. _l Cog Wheel a et { _ None _ i Lis EE ReaD ane AS OEP ELST a eeecintceteehenensliaalcelaaytbiney, die dhiiiannea Pe ogo 8 Ot 5s Car Initial P.W.8. No.1609 Conductor J. H. Wilson _ Seals. t? MW. North or Bast N. C. Cab 12 This stud should be filled out in same manner as regular exceptions. The stub should be Youth or West Do __ retained in book form as a permanent station record. On the back of each stub and immedi- _@tely opposite each exception made should be recorded the movement of all claim or investi- gation papers sent agents covered by such exceptions, and Superintendent's and Preight Claim Arent's nimber shoujd invariably be shown on this record of momvemen* of the papers. End Windows__ Agent's stub. Form 508 Agent's No. 575. SOUTHERN RAILWAY COMPANY. Alabama Great Southern Railroad. REPORT OF PREIGHT "Over", “Short,” "Damaged," "Refused or Uncalled For" and "Improperly Billed.” ee ee ee ee ee Se ae Report made at Alexandria, VYa., —Stetion 2-20 - 1900 Foreign Way-Bill No, 194 Date, 2B-a3B-_ 1900 Props P«. Wa BL To Sou OT mane Ca ieee ae -_--—-—-—-— = _——— ee eee eee Se eee ee ee ee ee ee ee ee Southern Railway or A. GO. 8. R. R. Way-Bill Reference. Way-Bill No SON RD: CS RN SO i POO gO atti Nr Saas Sa BS a From Be Sees eet io ted tO a es ete a caer Te ee Consignes_ Wm. G. Sharpe, .-_—-_—s«— Sy) eee 8 ee Destination Statesville aan 5 Ee Og PR " 2 Marks. _— " didibec ctu ie eee Se eames! re a ie ith ae Articles Billed. Articles Received. Ree ee ra ee Be a. rn eae ee ae Ee ARS Se Be kA | Oo es ee ——-—- - RPI OST a oe SRG Te a tee OE oat sci ig uit bee oe Train "o.. Car Initial PP. W. 8. No. 1609 Conductor _J.H.Wilson Agt. M Seals. North or Bast WN. C. Cab 12 This stub should be filled out in same manner as rerulear exceptions. The stub should Youth or West. _ Do __ be retagined in book form as a permanent record. On the back of each stub and immediately __... opposite each exception made should be recorded the movement of al) claim or investigation papers sent agents covered by such exceptions, and Superintenient's and Prei, ht Claim Agent's number should invariabiy be shown on this record of movement of the papwre. End Windows _———— -21- Cc. Agent's stub. Form 508 Agent's no. 576 NOUTHERN RAILWAY COMPANY. Alabama Great Southern Railread. REPORT OF FREIGHT "Over," "Short," "Damaged," "Refused or Uncalled for" and “Improperly Billed.” Report made at ___ Alexandria, Va. Station, = —Ss§ 2 = 20 = _ 1900 < e Le xk Cc. a ot 5 as es aad Pe; rg Wa I i a ee Poreign Way-Bill No_ 194 MOCO gs: eee Me tA a Prom._.—SsP«. We. & B. eS SCS a ee Southern Railway or A. @. 3. 5 Way-Bill Reference. PUREE OP rh ak ne ga ce i Pe ae a ae a a Ss ag AR i fe ee I a ineaaattoaaeapin bonged kiicl leanne Destination_ ws eee Set tay ae ee KE Marks. _NoMarks | es aid ae Sb a os as Sate Articles Billed. Articles Received. SNR aa Nas pe Sle ie eae te ST ell Bee Ll ee ee RS ak ns tai acaleeceenliies hashes icb acer Train No. _____ Car Initial _P. WV. & B. No. _1609 Conductor J.H.Wilson. - —_—_— A. i lalla, a —— SS Seals. North or Rast__N. C. Cab 12 This stub should be filled out in same manner as regular exceptions. The stub Youth or West. _Do ___ should te ret ined in book form as & perma- nent station record. On the back of ¢ach stub and immediately opposite each exception made should. be recorded the movement of all claim or investigation papers sent agents covered by such exceptions, and Supéerintend- ent’s and ®reight Claim Agent's number should invariably be shown on this record of ; t ti : The defendant introduced in evidence the foitoting clause, which appears on back of Bill of Lading attached to SCarrett's deposition: "3S. “se carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.” End Windows__ ee Defendant rested. : Re-Dire ct. Plaintiff then offered in evidence the Summons, zee 10th of REL Wiaes3, Harvya xX, October 1900 sand offered for the purpose of c ntradicting ¢ertain wstedar Dak. portions of the deposition of Thos U. Fairfax as follows: "The Pennsylvania Company hilled to the Southern Railway Company & cor¢-wheel weighing 225 pounds 1 box of Ww. cors Which were billed in the name of J. M. Sharpe to Statesville, North Carolina. I checked the shipment short for that party" x x x "I received out of the same car 1 cog wheel 225 pounds with no marks and 1 cogewheel 175 pounds marked for Wm. G. Sharpe, Statesville, North Carolina." "We received this property about Peb. Srd, 19U@; 14 laid it on the platform by the order of Mr. Wilson our arent at that time, while the matter could be straightened out with the Pennsylvania road.” Plaintiff then recalled Jas. M. Sharpe, the plaintiff, who testified: - "That on March 20th, 1900 wnen he had given up hope of getting the wheel and box of cogs which he nad originally ordered, that Statesville and on that day wired directly to the Christiana Machine ~ Company at Christiane, Pa., to send another wheel and box of cogs in lieu of those previously ordered - that two days thereafter on the 22nd of March the eoods arrived at statesville and on the 23rd he got the goods and put them in his mill and started it running on of the 23rd. ct o ~ ‘ 7 Defendant introduces a tag which it claims was on one of these shipments at Statesville depot, which is in these words: Wm. G. Sharpe, Statesville, Iredell County, N. C. Prom Christiana Machine Company, Manufacturers of Shafting, Pulleys, Gearing, Etc. Christiana, Lanc. Co. Pa. # 7~ Plaintiff prayed the Court to give the following instruction, which the Court did, but modified it by the words in parenthesis: " @th Instruction. If you find by the rreater wei; of the evidence that the foods, or any part thereof, was dvlivered to the defentant at Alexeidria, on vir about the 2nd of Pebruary 1900 and that the plaintiff appeared at tas depot in Statesville on or about the Sra » -23- ? . of February 1900 and made known to the agent at Statesville that he claimed the goods refea- fo in the complaint, and you furtner find thet on that day, or on the 5th of said month, or on other days soon thereafter that the plaintiff exhibited to the agent in Statesville the bill of ladiiz purporting to state the kind of goods, the weight of it, the name of the consirnor, the name of the consignee, the station from which it was shipped, - and you find that after this information was thus civen to the defendant's agents that they failed to identify the goods and the consignee and to forward the same with reasonable dispatch - the defendant is guilty of negligence and is liable to the plaintiff for such damages as he may have sustained,@by reason of the delay if there was a delay, after tis, had reasonable time to ret tne gooods afte: «he discovery o. thé Gefective marks). Third Exceptioh. Plaintiff praye@ the Court to give the following instruction, | + but the Court added the words in parenthes! he pieasitiff excepted: "5th Instruction. As to wnet is reasonable time within which a common carrier should forward goods,"in the a nce of any express contract between the shipper of goods and tne comnon cariier to tie contrary, if the carrier receives goods. to be shipped, there is an implied agreement on its part to ship them within a reasonable time, and the statute in North Carolina has fixe#c a -ime to be within five days after the carri received the goods for shipment x x x the statute expressly provides that *he carrier - a Railroad Company - shall ship them within five days after it receives the goods for shipment, unless otherwise agreed between the Company and the shipper." McGowan vs Railroad, 95 at page 424 &25; The Cod+«, section 1907; Brench vs Railroad 77 at page 347.fand this statutory reeuiation you may consider not as a rule of law to guide you but as a light to assist you in reaching an equitable rule.) Fourth Exception. " Defendant asked the Court to sive the following special thee which were given by the Court and plaintiff excepted to each and every -24- one of them: "j--+-If the jury should find from the evidence or from,the admissions of the plaintiff that the Pennsylvania Railroad, the initial carrier, never delivered the box of cogs to the defendant, Southern Railway Company, the defendant would not he liahle for any damages which the Plaintiff may have sustained by reason of his failure to get the box of cOgs. The burden is upon the plaintiff to prove by the preater weight of the evidence that the Southern Railway, defendant received the box of cogs and failed to carry it to its destination with reasonable diligence. Pifth Exception. *-- if the COR never came into the hands of the defendant, it cannot be held liable for anything to the plaintiff. Sixth Exception. 2---If the jury should find from the evidence that the Pennsylvania Railroad never delivered the box of cogs to the defendant, and should further find that the plaintiff could not run or operate his mill . o because of his failure to fet the box of cogs then the jury are & > ‘ + instructed that the plaintiff is not entitled to recover against this defendant and the jury should so find, and the answer to the 8nd issue should be Fo. Seventh Exception. 3---If the jury should find from the evidence that the wheel was improperly marked either by the consicnor, the Christiana Machine Company, or by the Pennsylvania Railroad, and when delivered to the defundant, if delivered at all, at Alexandria, Va., was so improperly marked that the defendant could not forward the same, the damares, if any, would not be caused by the defendant and the pleintiff would not he entitled to recover and the ‘ury should answer the lst issue No, (unless the defendant could by the use of ordinary care and diligence have obtained proper marks after being aprpric«d of the real siturtion, provided you find it was fully advised of the error, if there were errors in marking.) Righth Bxception,. oe -25- 4--If the jury should find from the evidence that the Chrisitana Machine Company filled out a proper bill of ladine and that the same was sicned by the agent of the Pennsylvania Railroad at Christiana and that the plaintiff received said bill of lading, yet if the wheel was marked wrong by the Machine Company, or by the Pennsylvania Railroad and so marked when delivered to the defendant at Alexandria, Va., and the defendant could not forward the sane because of such wrong marking and the plaintiff's mill was delayed in starting up, the defendant would not be liable and the jury should so find and answer the Srd issue No,unless the defendant could by the use of ordinary care and diligence have obtained proper marks efter bing apprised of the real situation, provided you find it was fully advised of the error, if there were errors in marking. Ninth Exception, 5-<If the jury should find that the “transfer bills® from the nowed the wheel consirned to Jno. Sharpe and w Pennsylvania Railroad the mark upon the whe+l, William G. Sharpe and because of the difference and uncertainty could not forward the wheel promptiy »v* did Peeward the game so soon as it Was ascertained tnat 1% ip: at be the wheel wanted, then the plaintif? would not de entitled to recover. The defendant eannot be held liable for the errors of the consirfnor or the initial carrier of the wheel, and the jury should answer the Srd Issue No. Tenth Bxception. 6<--If the jury saould find that the box of cogs was never delivered to the defendant, but was lost in a wreck upon the Pennsylvania Railroad, and that the plaintiff's wheel was delivered to the defendant as alleged, and the jury should further find that the plaintiff's mill could not be started unless the box of cogs were received, the failure of the defendant to promptly carry the wheel would not be the proximate cause of the injury and even if the mill remained idle for a great length of time, the defendant would not be liable, for the reason that the cogs being necessary to the starting of the mill, and they not having been delivered to the defendant, but lost in a wreck upon the Pennsylvania Railroad, that road would be the cause of the damage to the plaintiff and not this defendant and tne jury should answer the 2nd issue No and the 4th issue No. Bleventh Exception. . ; i * : a“ ~_m™ iol Se rid . ° * Hae ate e ; « ¥ -26- 7---The jury are instructed that if the plaintiff is entitled to recover at all, the plaintiff could only recover such damages as were within contemplation of the contracting parties at the time the contract was made for carriage, and the date of estimation so definit+s and certain that they could be ascertained reasonably by calculation; the measure of damages could me® only be legal interest on the capitai invested, expenses incurred in endeavoring to get the delayed machinery, of unemployed employees, such as were the direct and necessary result of the defendant's negligence. Twelfth Exception. Thirteenth Exception: Por that although the defendant admitted in the sed¢ond paragraph of the answer that the wheel and box of cogs were consigned to Jas. M. sharpe, at Christiana by the Christiana Machine Company, the de“encant was permittea to contend before the jury that sucu vere permitted aimission was not binasig upon defendant and the jury c to consider evidence offered by defendant contradicting its answer. Pourteenth Exception: Por that although the defendant makes the admission as to receiving the wheel and box of cogs as set out in the answer heretofore copied in the record, the Court failed to instruct the jury that the + defendant was estopped by such acmission from denying the same anc failed . to charge the jury upon such admission to answer the lst and 2nd issues Yes. Pifteenth Exception: For that His Honor directed the jury that although the admissions in the answer were some evidence tending to prove the facts admitted that the jury could consider the other evidence offered by the defundant tending to show that it had not’ received the goods or the box of cogs. . Sixteenth Exception: Por that His Honor failed to present the chief contention made by plaintiff as to the lst and 2nd issues, viz., that the defendant having admitted that it ied received the wheel and box of cogs it was estopped by ite admission ~ that this admission had been made in a sworn ansWer after it had had full opportunity for an investigation of all the facts for over gix months, and that the transfer way bill itself offered by the defendant revealed the fact that the Pennsylvania Company had turned .vered the wheel and box of cogs to the Southern at Alexandria on February Srd consigned to u wean John Sharpe at Statesville, North Carolina - both articles identified by name and weight - and that the change of figures on the face of said paper disclosed that the paper had been tampered with, the same having been in the possession of the defendant from that time until the present. Seventeenth Exception: Tor that His Honor should have instructed the jury that holding the goods for a period of about 5C days was unreasonable delay and should have instructed the jury to answer the Srd and 4th issues for the plaintif?. After the verdict was rendered the plaintiff moved for a new trial for the reasons set forth in the *fore;oi exceptions, whieh was denied oft and the foreroing exceptions ear re assigned as error by His Honor - ?, VY o - + . 2 gat o+ ; - ,Ann re _+ as if fully set forth and repeeted. Defendant excepted. The Court then rendered the following judgment: North Carolina, In the Superior Court Iredell Count. November Term 1902. James ho sharpe, pls intirf, : _ I Judgement. Southern Railway Company, defendant. This cause coming on to be heard at this term of the Court hefore His Honor, Neal, Judge and a Jury anc »Seing heard - pon the whole record and the issues submitted and the Jury having responded to the issue; (1) Did the defendant receive from the Pennsylvania Railroad Company the cog whee] referred to in the complaint for the purpose of carryin; the same as allered in the complaint to the plaintiff at Statesvilie, H. Cs, about tue let or 2nd of Pebruary, 19007 "Yes. but not properly marked* and to the issue, (2). Did the defendant receive from the Pennsylvania Reilroac Company the hex of cogs referred ta in the complaint for the purpose of carrying the same as alleged in the complaint to the plaintiff at Statesville, N. C., about the lst or 2nd of February, 1900? "No". and to the issue (3) Did the defendant after receiving the cog wheel for delivery to the plaintiff, fail and neslect to forward and deliver same to plainti*f with reasonable dispatch at Statesville? tNo". It is tnerefore cons tdené “ad juaped and decreed by the Court, upon motion of L. Cy Cadlwell, Counsel for the defendant, that the plaintiff recover NOTHING in this action; that the defendant recover the costs to be taxed by the Clerk of the Court and ¢o hence without day. x Waler H. Neal, Judge presiding. Plainti?’f excepted and appealed to the Supreme Court. Notice of appeal waived. Appeal bond fixed at $25.00, Sixty days allowed the Plainti?t? to serve case on appeal and sixty days 1 reafter for the Gefenmant to serve exceptions. (Only ct amen? (Plaimirf is ee > z frre Da fan The defendant, ‘ —erial made a motion to amend its answer, which was declined by the Court. (The Clerk will here copy the record of said motion and order denying the same as it appears on the minute docket of the November Term 1902.) The defendant, after verdict and before judgment renewed the said motion to amend, which was allowed by the Court. (The Clerk will here copy the said motion and order allowing saw as appears on the minute Gecket). (The Clerk will here copy the amended answer filed by the defendant in pursuance of said order allowing same, showing the date of the filing of same). It is hereby agreed by the counsel for the plaintiff and defendant that = foregoing shall be and constitute the case on appeal to the ourt Supreme Saumhexeeptxtextktexxxx except in the following particular which it is hereby agree@ shall be left to the Judge who tried the case to determine, that is, whether the evidence as taken by the Court, and insisted upon by the plaintiff, shall be incorporated into the case, or, whether the evidence as taken by the defendant's stenographer at the trial, be incorporated into the case as the evidence in the case, which is insisted upon by the defeniant. Tt ie agreed that the original Exhibit °Z", as it remains in tact be attached to and sent up with the case on appeal instead of a copy thereof. It is agreed that his Honor, Judge Neal, shall settle the case on appeal in so far as it is not hereby agreed to, by consent, and without any further notice to either party. a j od This Dee. 31, 1902. J Jo-+4 y / LLL, A ALG~~<in + £ whe'y. for Plaintifr. ) , -— FC laeeuce i ee ee Att'ys. for Defendant. GE ticbeiile. Be PLE. ee ‘ ase ¢ =" SSR ALG rvun galwoltaae goleo fe? eff al fqeone oxen etexet tqeeneteer® ° * 7 we ~ 9 Aw ° . . : . "Vel wt iade Our 4 e ei , tte 12 ef wede? aa eonebive edt tedfete ,el 'an? ,eaimrietes of . .* 5% oi? “ofa he? a . * ‘ . . laa Sou! i; atianewt * a ia “2 fact? bewrge et *! s90 4 76 bewtent Laegen, we e589 Of? Ativ qe tnes One Of DeneA*ta OF Sane at? m eneo ed? ef @fee ‘lade ,tae" e9f. , 79" eit SAP bewege al eu tie Gen ,foeanse «et ,. oF Serre ‘weed fen ef fi ae et of of Large sentie «©? selfan vetruw? «me James M. Sharpe |! vs. i do. Ry. Co. { i The defendant, in apt time, moved the court to allow it to amend the part of its answer wherein & it admits that the box of cogs was re- ceived by it for earriage, and make the answer speak the truth, to-wit: that the box of cogs was in fact never delivered to the defendant. It appearing from all the evidence that the fact is true, and that the box of cogs was lost in a wreck on the Pennsylvania railroad. L. C. Caldwell, Atty. for defendant. The Court without passing upon the truth or falsity of the matter in the pleadings, in the exercise of its discretion, denied the motion to amend. Nov. Term 1902. Neal, Judge. J. M. Sharpe { vs. i southern Railway. I It is ordered that the defendant be allowed to file an amended answer but net allowed to strike out anything. Amended Answer. North Carolina! Im the superior Court. Iredell County] November Term 1902. James M. tharpe ! ve. i Amended Answer. douthern Railway Company! Upon motion made to the Court by the defendant to permit it to ee amend the answer in the above entitled cause, the defendant now answers and says: 1----Shat it denies the allegations of the second paragraph of the complaint wherein it is alleged that "the plaintiff through his agent secured the shipment to himself at Statesville, N. C., of certain ma- chinery" and that " said machinery consisted of a cog wheel and a box of cogs and the same were shipped to plaintiff by the Christiana machine Company who delivered the same to the agent of" 2----That it denies the allegations contained in the xicte@ 3rd paragraph of the complaint. Srd--The defendant denies that it ever received the box of cogs alleged to have been shipped to the plaintiff, but @lleges that said box of cogs was lost in a wreck upon the Pennsylvania Railroad and never came into the hands of the defendants, and having fully answered it asks that it recover its costs and go hence without day. L. C. Caldwell Atty. for deft. D. M. Coiner being duly sworn says that he is the agent of the defendant at Statesville, N. C. and that the foregoing answer is true as of his own knowledge except those matters and things stated therein upon infor- mation and belief and as to those he believes it to be true. Sworn to and subscribed, this Nov. 19th 1902.D. M. Coiner, Agt. J. &. Boyd, Deputy 6. 8. Cc. Piled Nov. 19th., 1902. J. A. Hartness, C. 8. C., By J. &. Boyd, PD. Cc, I, J A. Hartness, Clerk Superior Court, hereby certify that the forego- ing is a true and perfect copy ef the motions made by the dfendant to amend its anewer in this case, and the orders of the court, pursuant to said motions; and of the amended answer filed by the a@fendant, as com- plete the remains on file and of _yecere in my office, : <Z SS EOD ( AN, a ~ Gee 2; tA / alae CC Or Clerk Superior Court. sat % Aga ss8q Dagoes wd? Yo ansi? serena obe ane VWieslelq ont” saat -Am alae 29 a" t PAL To mod. « bas Sinan HAR to - voat: ">? Syst J xe wxex x wht \w? pests ye : +. r Bal i 3ua?t----S tnlalq oo of? Ye Aqei ,eteg anos To xed ef? bevieoet teve 11 Jad? eslav® fasoesteb odT-- O06 biee tact eeselia ted ,Ttiftatala et? of Bbegeide geet evan of begeiis ‘oven Soe heoviied alaeviyeanet ef? aoq doer 2 ot feol saw egeo To zod allies *1] bevewene (list sclved Gee .Beaabae* ed oc? 6 sbead eff Offs! omBO ead tuedeie eomed a9 Bae 3 sfeto 471 Tevroows 71 Sane Ifertis®? .9 .f .? teh 107 o¥PPA fnahaste® en? To Pnene ee at of tant eyse crows yluh gried tented . .a > afoeas? ef Suwon at © ;. sacs : 93% (ame wk Big. 20 a6 ; aad : pe * gbte 2% a ily amas Baise: en tak ; wy nO ' + ,*o) “an: ” + iu : ~ + wer Sa ; mM \ : % . } .?an Pah . ten Ma, { A?8L voll sin? .beditesdvua Bas of aot ’ c ry > 7 " : 5% > > y' > . roe! , are! vor beli® go? «& .D ,e@enfusl .A Lt : tT .b<" 7 tt sOnntet edt fan? YIltws Weed ,f1N0d 19ls8q@et Yield ,caentin fF 7 ,! 0? taabaetb ef? yt sham saoltam ef? To yqee Portteg Baa oid 6 Bi Bhi 4? tommetea ,o1s00 edt Te acebee eff bas ,. cane sin? af tewens #21 brene -m95 88 ,frobaet®S «ff <4 Bellt 16vene bere en? To baa jenol?om diese ,volT%> ve «) Proect Te Bae aff? oo ealene on? en efelg Ae Aa Ale a i el aan Aly ee Ae age aa lle -Ptu0d Salseqe> #rald Railway Co. a 1903 at In the cases of 1.¥.Pleming va’ Seuthern Railway Company and J.M. Sfarpe vs Seuthern Railway Cenipiny, is-is agresd@ that. the Judge may make up the cases upen appeal to the Supreme Court without a further notive te either party. Dec 24th 1901 re J /? * Pr wee Lehr FS ei KS fer plaintiff 3 , PEO Sake: > Atty@e for defendant. Sharpe () — dl Issues Tendered by Plaintif?. « vs. Railway Company = | (1) Did the defendant receive Prom the Pennsylvania Railroad Company the Gor Wheel referred to in tne complaint for the purpose of careyving the game as allered in the eonplaint to the plaintiff at Statesville, MT. Ce, o an 7% the Lat or Snd af . Cue: 1 .. . E / ia Ls? . i > Tid the defendant receive from the Pernsylvaria 34 pany Nn? ~ ) - ~~ ~ 3 ~ a. . > tre hex of @enrs referred to in *ne ¢ taint far tHe r e of carrying » ai ~ - re ~s, a 7. a ‘ ir + ‘ } ; > M + ) +4 } 9 E Ge ~ . , ) ‘ } > f 5‘ i ‘ e Bae Pars ~ ¢ ti "* F vy ee } - x de) ivery to lainti?ffr fail na nerlect to for ‘a ana deliver me Go plaintiff vith reRAS nahbile dispatch n? ’ +. ill#? answer: LPO (4) “id defendant afte reese ViItTg the hox plainti?f, Pail and neaerlec* + fry ae and a (5) “hat nianar & Pitase laintiff S : ined h of said property? Anawer: Sharpe, ! vs ; Issues tendered hy the Plaintiff az Railway Company. | Ctelrytied 10 Wee fg thy Me Cacarer (1) Did the defendant receive from the Pennsylvenia Railroed Company the cor wheel referred to in the complaint for the purpose of carrying tu Ke Calle te Eb. the same as alleged to Plaintiff at Statesville about the Ist or 2nd of A \A February 1900? Answer.= )¢ Lua. bb etne ag ate 4 Cl (2) Did the Sa unfoore from “We Pennsylvania Railroad oy _ fen EDy ees the box of cors hey erred” to She eine t te—->o~shipped to ianaster aA-¢. Al at Statesville ahout the lst or 2nd of Tebruary 1900? A Answer.- ‘4/7 (3) Did defendant after a0 receiving entd cor whee Aid neh eae a 4 plaintiff fail and neszlec* *c forward and celiver same to plaintiff with reasonable dispatch at Statesville? Answer.- (<6 / fer teleciony Di flla'. Zpege (4) Did @efendant after receiving the box of cogs’ fail and nerleet A A to ee to plaintiff with reasonable dispatch at “tatesville? Anawer.- J, 4\d f (5S) What damage has plaintiff sustained by reason of the non-delivery of said property? Answer .- Foun Nina y AT Ae A Oller U g 4 stone oe : eo > fare an ‘7 ” » ® —e . , tine ~~- 4 a oa. nis . ‘ ‘ > « : iI j : Ay e ea ' mY | 5 ' ‘ aomer , | . : . wi { . ‘ ; ; : : ; , ‘+? i ’ t eof oT \ _ ”“ ee : + - , 2s ‘rat*n* * - "" ‘ ; " ‘ny . ’ : '° . . ‘ 1 faenaaan et @ Pe ewer ** ‘an o:.,* ’ ‘ 4 ’ f . . : PS) , ; : 4 a + - + . ; ’ ‘ + ’ “ ‘) Sharpe Issues tendered by the Plaintiff and submitted to the jury by the court vs Railway Company. (I) Did the defendant receive from the Pennsylvania Railroad Company the cog wheel referred to in the complaint for the purpose: of carrying the game as alleged in the complaint to Plaintiff at Statesville N.C. about the Ist or 2nd of February I900? Answer.- Yes (2) Did the defendant receive: from the Pennsylvania Railroad Company the box of cogs referred to in the complaint for the purpose of carrying game as alleged in the coplaint to plaintiff at Statesville N. C. about the Ist or 2nd of February I900? Answer.- Yes (3) Did defendant after so receiving said cog wheel for delivergiple- intiff fail and neglect to forward and deliver same to plaintiff with reasonable dispatch at Statesville? Answer.- Yes (4) Did defendant after receving the box of cogs for del- avery to plaintiff fail and neglectto forward and deliver same to plaintiff with reasonable dispatch at Statesville? Answer.- Yes (5) What damage has plaintiff sustained by reason of the non—-delivery of said property? Answer.- Four Hundred & fifty Dollers NORTH CAROLINA, iby Term, 190 2.. SUPREME COURT. ECACCE —_ county. JUDGMENT. This cause came on to be argued upon the transcript of the record from the Superior Court of Seucdate County :—upon consideration whereof, this Court is of opinion that there is ——< error in the record and proceedings of said Superior Court. It is therefore considered and adjudgeg,by the Court here, that the opinion of the Court, as delivered by the Honorable Cijvel Ut He — Justice, be certified to the said Superior Court, to the intent that +e A- -—Prece— eur i. Atv ntittat 4 And it is considered and adjudged farther, that y ay 6 : Ae “ ee the costs of the appeal in this court inoyrred, ig é to-wit, the sum of Niort Maree 47 oe dollars (§ IS ey Ps and execution issue therefor. A True Copy: G lp Clerk of the Supreme Coart. eh “Sah eves We C “SoPREAE cause: Feb. Mae: 1903, + 0,1 Iredell. cela a ‘Stiarpe. Vs ‘Souter Railway &., appellant, ) = - &. Caldwell fer : ye Llant ; eo “hong: & Micholson’ for ‘appellee, 2 ‘took, oe “Profits become 2 measure of damages only when: eae were within, - the contemplation of the contracting parties and the data of. estimation | ‘go definite “and Certain that they can be ascertained reasonably by. calcula- 3 - tion; in-which dase the party in fault must have had notice, either of the - nature of the oontract itself, or by explanation of the circumstances at ‘the time .the : coritract was made, that such damages would ensue from non- performance, Railroad Co. v. Ragsdale, 46 Miss. 458; Pender Lumber Co, ¥. Iron Works, ‘at-this term; Macy v, Ramsey, 74.N. C. lig It is not al- leged in the complaint nor shown by the proof that plaintiff lost any def- inite and certain profit by the stopping of his mill; nor that the contract. | was such as to inform defendant that any loss of special profit would ensue to plaintiff by its breach in negligently delaying the shipmmt and deliv— ery of the machinery, cog-wheel and cogs, a4 _.. “Sheednjury sustained is alleged to have resulted from plaintiff's ina- bility'to operate his flouring will for the want of ‘a cog-whéel and sone cogs which he had ordered to be sent to him from the factory in Pennsylvania - and whichs were negligently delayed in their délivery by defendant company, His mill had been in successful operation but the cog-wheel and som cogs . broke, and he did not have others to supply their place, and could get such as he needed only from the factory. By reason of the alleged negligence of defendant the mill was stopped ¥ Gi from work w month or more, causing a loss to plaintiff on account of ex— penses incurred in trying-to get his machinery, idleness of his mill, ex- pense of keeping his laborers etc, Jo show his loss resulting from the non-use of the mili His Honor ad- mitted evidence, over defendant's objection, to show what the profits of the mill would have been during t hat es time if the mill had been at work, | | a8 appears from the following questions; and answers, viz;- : _ "Q What was tho damage to you in stopping mill from the ard, of Febru- aa, to Berd, eh March? ‘What would have been your nes t profits ‘on your. ys 3 ' - . ‘ 3 . ‘ © ae o- + ‘ + ok 4 . 4 oe eae we Ss ¥ te ia nie. teterpart tout at time, aviashing your Sapital + ‘invested, the ous~ E tom You bate at duspension, wheat. on” hand, deliveries to be fade anid con— ried 2 diton of tntngs at the mili at this tiny ete ees f ae Ths Lightest months are ffom May up’till Gidtreak “thts Swouitds be two Pe onths and a halt; witness “me aris’ by “harvest , threshing time. Witness weg > would’ say-his net profits during this particular tine wonld-have been about ah oe. as 78 1/2 percent,” | | “R. Ry. Hill, ‘plaintite's witness testified.....ce+¢. @ Taking Lito consideration the capital invested, "your opportunity to know ‘the custom ‘and: husiness operation of the nid. the character of the * - ey mill dite, and overything you know in connection with the value of the: Prep | erty land its operations, state your judgment as to the loss likely to be- < incurred by eae ats if at Wag suspended from 8rd. of ppeeeery: fo ord. Of March, ’ oi . A, Witness sk@uld think, from witness'-knowledge of the work he-was doing ‘ that $250. or $200 per nonth-wovld be a very low estimete," For the error in admitting this evidence a mw trial mst be warded: “What the profits would have: been during that interim would have depended upon the quantity and quality of gral brought to its fegularity with «whieh it was brouglit; convenience and caprice of the patrons; price of the flour; opportunity of selling and collecting the price for sam and other contingencies, all of which were uncertain conditional and indeterminate, . and failed to furnish dats upon whieh a reasonably accurate estimate might be mide, ‘The facts in this case are very similar to those. in z Board Ve Railroad Co., 58°. 6, 285, where a part of the machinery, a st eam pipe, z was. negligently delayed by the railroad company on aécount of whigh the | mill was left idle for some length of time, There the ‘court held that ihe : | profits which the mill would have made would be too vague, Indet emanate) 3 nd uncertain to -be correctly estimated; and held the masuré of oon =to be the legal int eréest on the capital invested, expenses Inourredtn +: * endeavoring to gét the delayed machinery, of unemployed employees ont: "much other damages as were the direct and vevessary reagry, of detendant"s Ag se 5 am “35 . Se. _ntgene; te: wich rule we still adbere. nam i : ‘: Therefore. His Honor erred in admitting evidence to show such special « or. b % Pic itt profits. or income, but should have pllowed legal interést on” _ the capital investéd etcs, ag is held in §% Foard v. Railroad, supra,. 5 For te error in. admitting such ‘evidence a new trial is awarded, ae, ay iF Bes ls CAROLINA. __County—Greeting : e nept Court to be held for rete County at the é Clerk Superior Court of Iredell County. Civil Subpena. COUNTY OFFICERS. CLERK :—Cuas. H. Somers. REGISTER OF DEEDS:—OLtver F. Buevins. SHERIFF :—Joun H. Jonnson. COUNTY COMMISSIONERS :— L. C. Junninas, D. R. Epwarps, and F, M. Apams, Chas’ HH. Sdmers, ww Clerk Superior Court, Wilkes County. ————. @ TERMS OF COURT. -——. @ n Jan. TerM:—5th Monday before lst Monday in March. Aveust Term:—4th Monday be- fore 1st Monday in Sept, Ocroper Term :—7th Monday af- ter Ist Monday in Sept. CommisstoneRs’ OCourtT:—Every First Monday. 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To the Sheriff of < __County—Greeting : udge of Superior Court, at the oa to be held for our said County at the Caste i ictre cts on acas 1aasdhcnaceoctchncstoses Sse bs Mack... sient. ssi, aust serves honda pss aagteneceateeeteey, Cubbwbibserecges edovedbevecnsnteeenete WNEE ING SUEt® LO COGtany Bae , sy before said depending, and then and there to be tried, wherein omit, under the penalty prescribed by law. eee ce Mbkie SMe BATA SL scaeseeeeseeey Glerk of our said Court, at office in - Civil Subprena. Civil Subpe-na—For sale at The Mascot Job Office, Statesville, N.C. STATE OFONORTH CAROLINA. To the Sheriff of the truth to say in behalf of in a certain controversy ages, dependin v— Clerk Superior Court of Iredell County. Civil Subpena. Ze Civil Subpoena—For sale at The Mascot Job Office, Statesville, N. C. STATE OF) NORTH CAROLINA. To the Sheriff of ___County—Greeting : x by, Commanded to Superior Court, at the next Court to be held for our said County at the Court House in.. ee + BUNS Ohi eccceettree ee 7 the truth to say in behalf o The defendant, in apt time, time moved the Court to allow it to amend that part of its answer wherein it admits that the box of: cogs was received by it for carriage, and make the answer speak the truth, to wit, that the box od cogs was in fact never de~ livered to the defendant. It appearing from all the evidence that the fact is true, and that the box of cogs was lost in a wreck on the Pennsylvania pailroad, HEC fr y A ae he. ass ae Po Ajtai ati hs Thin, Be tity Me oo Meal Q Marvin Affe Z) Jo PCR < ep Ae teat North Carolina, { ; In the Superior Court. Iredell County. | James M. Sharpe, Motion by Plafucirt thas the verdict be set aside and for new trial: j vs ! I southern Railway Company, Pirst:- Por the exclusion of evidence offered by plaintiff and noted upon the record of His Honor's hotes and for such exceptions of plaintiff to other evidence offered by defend nt and where said exceptions were overruled and such evidence admitted. Secondi- For that although the defendant admitted the allegations contained in the Second paragraph of the complaint in its eneye and - ad which was offered in evidence the defendant was permitted to offer evidence contradicting the same and the finding of the jury is contradictory to same - the Court failing to instruct the jury that such admissions were binding upon the defendant. Third:- Por that the defendant in the Sixth paragraph of its answer filed “November Term 1900 admits that the cog wheel and box of cogs were turned over to the defendant, and in controvention of this solmmn admission it was allowed to offer evicence tending to show that the box of cogs was not received by it and the jury upon such evicence find the Second Issue contrary to the admission of the defendant and against the plaintiff and failed to make response to the Third, Fourth and Pifth Issues - when the Court should have instructed the jury not to consider any evicence offered by the defendant in contradiction of its admission. Pourthi- Por that His Honor instructed the jury that "whilst the admissions in the answer by the defend: nt that it received the wheel and box of cogs was some evidence of the fact, that the jury should consider the other evidence offered by the defendant which tended to show that it had not received the said foods." ‘Qe Pifth:- For that His Honor failed to present the contentions of the plaintiff with respect to the First, Second, Third and Fourt Issues, and more particularly in this, to-wit: That the admission by defendant that it had received the wheel and cogs fixed it with the possession of the same and the same being a solemn admission by it made in its answer, it could not offer evidence to the contrary, and it was the cuty of the jury to answer the First and Second Issues for the plaintiff; and further that after receiving same if it had used the appliances at its hand it could have used dispatch and learned the name of the consignor and consignee as it admits in its answer that the destination of the foods was fixed and certain. Sixth: - Por that His Honor erred in giving the First, Second, Third, Pourtn, Fifth, Sixth and Seventh instructions as prayed by the defendant. Seventh:- For that it was error to submit the defendant's contention Ht + 44 ar y "ar m ¢ ? ‘ + Re « ver , 4 \ + soe + Ps } ~hG@s L405 @a@anSewer Was preparrc Capt. Bason when no Witness testified Righth:- For that the verdict of the jury is contrary to the instruction PiTt+th of the Court as given in the Pil prayer of the plaintiff. The above is assigned both as grounds for setting aside the verdict and for new trial and also as assignment of error hy the plaintiff upon appeal, if such is tak , fi ALM ae November 15th, 1902, ~osebooes. o ammummibiton ——— i A ce i a a i a lh ie lt a lk el eal a lk a. it it. ay Attorneys for Plain*iff. °° North Carolina In the Superior Court Iredell County November Term 19092 James M. Sharpe. vs Amended Answer, Southern Railway Company. (ee RC ter en, Ypon motion made to the Court by the defendant to permit it to amend the answer in the above entitled cause, the defendant now answers and says; 1---- That it denies the allegations of he second paragraph of the complaint wherein it is alleged that " the plaintiff through his agent decured the shipment to himself at Statesville, N.C. of certain machinery" and that "said machinery consisted of a cog wheel and a box of cogs and the same were shipped to plaintiff by the Christiana wachine Company who delivered the same to the agent ef ;* 2---- That it denies the allegations contained in the 3rd paragraph of the Complaint. Srd--~--The defendant denies that it ever received the box of cogs alleged to have been shipped to the plaintiff, but alleges that said box of cogs was lost in a wreck upon the Pennsylvania Pailroad and never came into the hands of the defendant, and having fully answered it asks that it recover its costs and go hence without GO. Cabtucce. At‘y for deft. day. D.M.Coiner being duly sworn says that he is the agent of the defen dant at Statesville, N.C. and that the foregoing answer is true as of his own knowledge except those matters and things stated the ein upon information and beleif and as to those he beleives it tobe true. JY. 0 ’ orn to and subscribed this Nov 19th 1902 OY, , me wx p Let. irs O pha meee NORTH CAROLINA. SUPREME COURT. JUDGMENT. n to be argued upon the transcript of the record from the Superior Court of aed. .... County :—upon consideration whereof, this Court is of opinion that there ..error in the record and proceedings of said Superior Court. It is therefore considered and adjudged by the Court here, that the opinion of tha Court -aededuchedty be certified to the said Superior Court, to the intent that the._4« xe ffm. And it is considered and adjudged further, that uf Lasky g turch, Ab fay the costs of the appeal in this OG incurred, dollars (8 F Me —_— ), to-wit, the sum of and execution issve therefor. A True Copy: NOTE . f Clerk of the Supreme Coart. NO written Pinion fileg Per Curiam Order AOE Seema, ge pastime i lg alge Baewamin F. Lone. Greoxoesr B. Nicnorson. REFER TO OFFICE OF + First NATIONAL Bank, Statesville, N. C. Crtizen’s NaTIONAL Bank, Raleigh, N. C. Mercuants & Farmers’ Nar. Banx, Charlotte, N. C. LONG & NICHOLSON. Com™Merciat NaTionaL Bank, Charlotte, N. C. ATTORNEYS AT LAW. STATESVILLE, N. C., ae le. peshecM Beers, SL nee A = al a ‘ea pponey, Be BILL OF COSTS.—CIVIL.—Printed wnd for sale at The Landmark Job Office, Statesville, N.C. 2-1-’96-1m. Original Summona. orgjther orjginal pr, . including all names NO EO OE Oe | is aloe apie) ALO £ 1 from Clerk to faage bk Be a P SOR time of Teddi Interlocutory Orders.........ccccccseceree sees Sebdsadpbanae Unvsoabaaenivinké Sophs Judgment Against RAMS COVGGE DH scosainsiaken sees iescksbeses ussnsayoebicctcaoechighs chines smaaen Ow Injunction Order, including Bond and Justification 1.00 Cae OE AUTOR iio cpccccs bcece) ss dacs enccsoneseninsoesadensvchoosacechsvonestinee ''tece 1.00 POONA, CACH NAME.......06.. cree seenseessereecerensenee enepertenen renee seeeee 15 Notifying Solicitor of Removal of Guardiad.............100-see-reees 1,00 CONBGIDUANCE, 0o.5.s.-cncsees sesscrcccoes cess cvasacencsecscoorestonsvons shenesesede 30 Caveat to a Will, entering and docketing..........c10. ccsse- sence coon 1.00 Tesuing Commission errrrrrreecccccsescseses seevene sess ceenssssensensees 75 Affidavit, including Jurat and Certificate .. 0... . ...cccceeee ceeee es 25 FN aa pnibabbogbbccmasabasiadh pabevalvesbpbonts catigs mbapbee spel ee otion, Entry and Record old Bo ME hati sic. ives. inaganeoss 25 NOtiCe aQ..seseseesees sscseseneerssseeneassencnsnerenees senennnnnes onnen coe sennes .25 Notice, for each name over one in BAME PAPET.............0.-ceeeereeeee 10 _ Impaneling Jury......s-r-serserseseeeneeserens © ensneses on seeneennne seeene enone 10 } Justification of Sureties, except as otherwise provided............. 50 ly ment final in term time 4. eet BR at iad 1.00 u Ae et onl los eee ss ° oe 50 Judgment in favor Widow's Year's Support......... ... ce. ceccee 50 Docketing @AM0..... .....<ccreceeeeesenees .25 Docketing ex parte Proceedings ... 50 | Ted aMMORt....0.00000. sorccoscasvorevese snocsncvoososconteressoscssoosousies -25 | BUMMONGS....0..0.00+ seoesereessererees an © poche qeepesbaseqomeclyy ate : 25 Eee TROMTRORE, ceccrevsesevscscntseseseeensens snevncequemnconenngees 10 Filing Papers.... 10 Postage, OCCUR ............-.0000 sesrerseseerenncenenes seeeeere-senenssoes senees snnee — eeneee | Transcript of Judgment 25 heneoertne al BeTOT OS Tet nccce-necstesene :cescneyetes 50 | Appeal to Supreme Court, inclading Certificate and Seal 2.00 Transcript to Supreme Court, copy sheets, each 10 | County Tax, when Jury impaneled 8.00 MCA ] Referee’s Allowance a , hes wees |] coves | Sheriff Kk LP OFK ; | ‘ } Constable | Magiatrate i | Plaintiff's Witnesses Defendant's Witnesses sveee of se lerecesace| | tects ceeeelerseerere Clerk, Lobby «1 IE (‘por qi 4 paxy sy ) [tat-SJSOD f0 11tT ‘“LINIOU MAID “ON