The opinion
Ruffin, J.,
Dissenting. I am always distrustful of myself when differing in opinion with my associates, and nothing induces me to do so now, but a conviction, so strong, that I cannot get rid of it, and yet one which I most respectfully give utterance to, that the conclusion readied by them in this case is not a correct- one in principle nor supported by authority.
In the first place, I cannot agree that the statute under which the plaintiffs proceed, and to which reference is had in the opinion of the court, should be strictly construed because of its nature. It imposes no new duty upon the defendant, nor adds to or alters the obligations which it has voluntarily assumed. Like every other common carrier, the defendant owes the duty, by virtue of the common law alone, of providing adequate facilities for the transportation of goods received by it for that purpose, and of transporting them within a reasonable time. And the statute, so far from being in derogation of common right, is intended simply to enforce an admitted duty, and to declare a reasonable time within which it must be performed. Its purpose is to promote the public convenience, and therefore its in *269 terpretation should be, neither liberal nor rigid, but just, and such as will give effect to the salutary intention of the legislature; and nothing short of that diligence, which would acquit the defendant of its common law duty and liability, should be allowed to exonerate it from the penalty prescribed by the statute.
In the next place, the fact, as established by His Honor, that so soon as the statute was enacted the defendant adopted for use the form of the bill of lading, given to the plaintiffs, promising to transport at the convenience of the company, goes very far towards proving that its conduct in the matter has not, at all times, been controlled by the pressure of necessity, so'much as by a purpose to evade the law, and at the same time avoid the consequences of so doing. It is difficult under such circumstances to listen with entire confidence to the tale of an overruling necessity, which the defendant puts up in the case.
The statute, however, provides that the parties may by special agreement regulate the time of shipment, and the defendant insists that it has done so' in this case, and that by such agreement if v/as allowed to transport at the convenience of the company. But, as I understand the opinion of my brethren, they hold that such astipulation as this is too unreasonable and uncertain to have the effect of taking the case from within the statute, (and in this conclusion I most heartily concur) and the exoneration of the defendant is made to depend solely upon the circumstances of uncon» trollable necessity, in which it unexpectedly found itself placed.
What those circumstances are, thus relied upon by the defendant, is clearly established by the findings of the judge in the court below, and (discarding all immaterial matters) may be stated to be :
1. The increase in the defendant’s freight and tonnage *270 in the fall of 1881, resulting from the increased crop of cotton made that 3'ear.
2. The detention at Portsmouth of such of defendant’s cars as had been sent forward to that place.
8. The refusal of the Seaboard and Roanoke railroad company to transfer its flat-cars if loaded with cotton.
And the only remaining question is as to their sufficiency for the purposes for which they are invoked.
As to the first — The increase in freight and tonnage: It has been solemnly adjudged by this court in Branch v. R. R. Co., 77 N. C., 347, to be insufficient to excuse the negligence of a carrier, such as the defendant is, for that, it is the duty of every carrier who invites custom, and especially one having a monopoly of carriage, to foresee with approximate accuracy any increase of local freight that may be likely to occur, and to provide for it, in anticipation, the requisite power and vehicles of transportation.
Second — The detention of the defendant’s cars at Norfolk, surely, is entitled to no more weight than the other excuse. It could have proceeded only from one of two causes — either the defendant or its oo operating roads must have failed to. provide sufficient car-force for the work to be done Upon the whole line, or else some one of the other roads has been positively negligent in returning the defendant’s cars when not needed. And if from the latter cause, then, the defendant has its redress upon that negligent company for any damages it may have to pay the plaintiffs.
Third — The refusal of the connecting road to transfer the defendant’s flat-cars seems to fall directly within the principle decided in Condict v. R. R. Co., 54 N. Y., 500 . There, the defendant being a railroad carrier had an arrangement with other roads as to freight and the .division thereof, which however proving unsatisfactory, those '.roads, about two weeks before the plaintiff’s goods were delivered for transportation, refused to take any more goods from the defend *271 ant without an increase in charges, which defendant refused to pay, and hence the plaintiff’s goods were delayed ; it %vas held that the defendant should not, with a knowledge of all the facts, have contracted for the delivery of the goods within a reasonable time, at least, without giving the owner notice of the difficulties in the way. And just so it is with this defendant.
With a full knowledge of its lack of proper facilities for shipping cotton, and having had timely notice given it of the purpose of the connecting road not to receive it when loaded upon flat-cars, it contracted, without a word of warning to the plaintiffs, for the delivery of their cotton at Norfolk with reasonable dispatch ; and. it is now too late for it to claim exemption from a delay caused by the refusal of the other road.
Again, upon what was that refusal to transfer flat-cars based? Manifestly upon the well known insecurity which attends that mode of moving cotton. And should the defendant, who owes the duty of providing safe as well as prompt transportation, be permitted to excuse its negligence upon a plea that for ten years it had resorted to that reckless mode of shipment? This, to my mind, is to allow the defendant to take advantage of its own wrong, and to establish for itself an immunity by its own persistent violation of duty.
Another fact found by the judge, and I think conclusive upon the point of defendant’s liability, is, that during the whole of the eleven days in which the plaintiffs’ cotton was delayed, the defendant had, in addition to its “ local freight train,” a regular, “through freight train,” composed of its own cars and those belonging to the Seaboard road, which passed daily by its depot where the cotton was stored ; but, that upon this latter train, it permitted no goods to be shipped at any point north of Wilmington, with the single exception of Goldsboro.
*272 Now according to the decision in Branch’s case, supra, it is at this point that the defendant was most at fault, and utterly without any justification. It is there said, that the chief object sought to be attained by the statute is the protection of local shippers, for whose benefit and by whose money the road was principally built, and to prevent their being sacrificed because of the complete monopoly which the company enjoys, as against them, in the effort to secure freight from Wilmington and points further south. It is expressly declared, also, that while it is the duty of railroad carriers to provide for all freight offered, through as well as local, still, if for any unexpected reasons they cannot accommodate all, their first and highest duty is to their local customers, whose wants they are bound to foreknow and provide for; that to these they owe an absolute duty, while to the others, but a reasonable one.
As I view it, this court has never rendered a decision more important in its consequences, and so nearly affecting the every day interests and welfare of the people of the state, as this one in Branch v. R. R. Co., supra. It was delivered after much consideration, as is shown by the learning and sound reasoning it displays; and believing it to be supported by the highest considerations of public utility, I confess, it is with the deepest concern that I see its principles departed from, as seems to me to have been done in the decision of this case.
Pjsr Cueiam. Reversed.