The opinion
Brown, J.
Plaintiff sues to recover for loss of goods shipped in interstate commerce. The defendant denied loss of goods and pleaded specifically that plaintiff had failed to comply with the contract of shipment by filing a written claim for loss within four months.
The court charged the jury: “If you find that such claim was not filed in writing at the point of origin or at the point of delivery within four months, after a reasonable time for delivery had elapsed, you will answer that issue No.’ ” Defendant duly excepted.
It is contended that the burden of proof is on the plaintiff on the second issue, and that there is no evidence to support the charge.
The exception is well taken. Before he can recover, the burden is on plaintiff to show not only that the claim was
in writing,
but that it was filed with defendant’s agent at the point of delivery or of origin within four months after a reasonable time for delivery has elapsed. The point is expressly decided in
Culbreth v. R. R.,
169 N. C., 724 .
There is no evidence in the record justifying the charge. His Honor should have instructed the jury to find the issue against plaintiff.
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It is erroneous, and ground for exception, for the trial judge to give an instruction to a jury without evidence to support it.
Stewart v. Carpet Co.,
138 N. C., 36 .
As no motion to nonsuit appears in the record, there will be another trial.
New trial.