Opinion
(February Term, 1895).
Warehouseman — Ordinary Care — Negligence — Trial Evidence.
1. Where goods were held in a railroad company's warehouse, at owner's risk and for his convenience, the company was no longer liable as a common carrier but only for want of ordinary care as a warehouseman, and the owner of the goods, in an action for the value of the same, should be required to prove negligence as a part of his case.
2. A trial judge is not required to submit a case to the jury unless there is something more than a scintilla of evidence upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof lies.
3. In an action against a railroad company to recover goods burned in its warehouse, evidence that a night telegraph operator, who had an office in a room adjoining the warehouse, and slept therein, was intemperate in his habits and was drunk on the night of the fire, does not justify a verdict for the plaintiff.
ACTION commenced before a justice of the peace, in which the plaintiff claimed damages for the destruction of certain goods and merchandise which were burned in the defendant's warehouse, at Dunn, North Carolina.
The justice rendered judgment in favor of the plaintiff, from which the defendant appealed. The case came on for trial at November Term, 1894, of HARNETT, before Bynum, J., and a jury.
The plaintiff introduced the following testimony:
P. J. Peffrys testified as follows: I was the agent of defendant, at Dunn, in April, 1894, and am still the agent.
The defendant's warehouse was burned, at Dunn, on the morning of 13 April, 1894, before daylight. Young's goods were in the warehouse at the time of the fire, and were destroyed by it. The goods had been in warehouse for some time. They were received about 5 February, 1894, and had been in the warehouse ever since. The freight had been paid upon them and no charge was made for storage. The warehouse was securely locked on the night of the fire. I do not know (934) what caused the fire, but I believe it was accidental. The company had a lot of its own property in the warehouse at time of the fire which was also destroyed.
I did not take my goods out of the warehouse before the fire (935) because I was not ready for them. I paid the freight with the understanding they were to stay there until I called for them. The agent never asked me to move them.
His Honor having intimated that plaintiff could not recover, the plaintiff submitted to a nonsuit and appealed. (936)
F. P. Jones for plaintiff.
Junius Davis for defendant.
At the close of plaintiff's evidence his Honor was of the opinion that he was not entitled to recover, and a nonsuit was taken and an appeal granted. At the time of the fire the defendant was not liable as a common carrier but was only liable for want of ordinary care as a warehouseman. Hilliard v. R. R., 51 N.C. 343. The plaintiff was required to prove the negligence as a part of his case. Kahn v. R. R., 115 N.C. 638. We think his Honor properly held that the evidence was insufficient to justify the jury in rendering a verdict for plaintiff. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence (937) be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. There is, or may be, in every case, a preliminary question for the judge, not whether there is absolutely no evidence, but whether there is more than a scintilla of evidence upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof is imposed. Commissioners v. Clark, 94 U.S. 278; Ryder v. Womble, L. R. Exc., 39; Wittkowsky v. Wasson, 71 N.C. 451.
Affirmed.
Cited: S. v. Arkle, post, 1032; Oakley v. Tate, 118 N.C. 367; Bryan v. Bullock, 119 N.C. 194; Higdon v. Rice, ib., 640; Markham v. R. R., ib., 717; Weeks v. R. R., ib., 742; S. v. Satterfield, 121 N.C. 560; Malloy v. Fayetteville, 122 N.C. 485; Lewis v. S. S. Co., 132 N.C. 920; Byrd v. Express Co., 139 N.C. 276; Brick v. R. R., 145 N.C. 206. Aderholt v. R. R., 152 N.C. 406; McGuire v. R. R., 154 N.C. 386; Liquor Co. v. Johnson, 161 N.C. 76; Moore v. R. R., 173 N.C. 314.