Harper Furniture Co. v. Southern Express Co.

(The difference between "prima facie," "presumptions," and "burden of the issue" distinguished.)

WALKER, J., concurring in result. *Page 442 After stating the case: It is said by McKelvey, in his work on evidence, that there is a class of facts of which a court may take *Page 443 judicial notice in its sound legal discretion, and supporting them is the single principle of common notoriety, the vital question being whether sufficient notoriety attaches to any particular fact to make it safe and proper to assume its existence without proof. McKelvey on Evidence, pp. 33 and 34. Speaking further of this class of facts, the same author says: "In every case the particular circumstances must govern, and no general rule can be laid down. The decisions in particular cases are very useful, as they serve to furnish illustrations by way of analogy. They are not useful as precedents, inasmuch as the same facts may, at a different time and under different circumstances, be entitled to different treatment."

Speaking to the same principle, Professor Wigmore, in his work on Evidence, sec. 2580: "Applying the same general principle (as to judicial notice), especially in regard to the element of notoriousness, courts are found noticing from time to time a varied array of unquestionable facts ranging throughout the data of commerce, industry, history, and natural science. It is unprofitable as well as impracticable to seek to connect them by generalities and distinctions, for the notoriousness of a truth varies with differences of time and place. It is even erroneous in many if not most instances to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance." And in section 2581: "Among the common instances under this miscellaneous class are the facts of time, season, and distance; though here, also, the quality of notoriousness will naturally vary with the place and epoch as well as with the greater (642) and less accuracy involved in the facts desired to be noticed."

Accordingly, it is generally held that the court will take judicial notice of the placing of the prominent towns within their jurisdiction, and especially of county-seats and their accessibility by railroads connecting them with the trunk lines of the county; and there is well considered authority to the effect that courts may also take such notice of the distance to prominent business centers of other States, their accessibility by railway, and the time between them by the usual routes and methods of travel, to the extent that these facts are sufficiently notorious as to make their assumption safe and proper. Insurance Co. v. Robinson , 58 Fed., 723 ; Williams v. Brown , 65 N.Y. Supp., 1049 ; Morgan v. Farrell , 58 Conn. 413 ; Pearce v. Langfit , 101 Pa. St., 507, 17 A. E., 905; 16 Cyc., 861; 1 Greenleaf on Evidence, sec. 5; 1 Wharton on Evidence, sec. 340. And with this limitation, judicial notice may also be taken of the general business methods of railway and other well-known or quasi- public corporations when these methods are universally practiced or commonly known to exist. Wigmore on Evidence, sec. 2580; McKelvey on Evidence, 1032; Bank v. Hall , 83 N.Y. 338 ; R. R. v. Miller , 25 Mich. 275 . *Page 444

The present case affords an apt illustration of the rule and the limitation suggested, and the doctrine has been stated at some length in order that the parties may be correctly guided in its application on the further trial of the cause. The court can safely assume, as a matter of common knowledge, that the railroad lines connect Lenoir with the principal trunk lines leading north; that the city of Erie, Pa., is situated on Lake Erie, in said State, and accessible by railway. We can safely assume, further, that express companies are agencies organized for the purpose, at a higher price, of providing greater security and dispatch (643) in the delivery of freight, and that they select and secure for their business, as a rule, the most desirable and direct routes. The court taking judicial notice of these facts, it must follow, as a fair and reasonable inference, that fourteen days is too long a time for the transportation of freight by express between the two points — Lenoir, N.C. and Erie, Pa. — and that, prima facie , there has been actionable negligence in the performance of the contract of carriage. While, however, the Court may assume the general facts suggested so as to permit the inference that in the absence of satisfactory explanation the time taken has been too long between the two points, it would not follow that the Court should go further and take judicial cognizance of additional facts which would be required to determine how much too long it was. This would likely involve the existence of further facts entirely too minute for the application of the doctrine, such as the route selected, the number and schedule of the trains, etc. "The principle of judicial notice is largely one of common sense," says McKelvey, supra . In the one case the general facts could be assumed because sufficiently notorious to make it safe and proper to do so. In the other it would not be safe and might lead to an erroneous conclusion, working harm to the litigants; and, therefore, if, in the further trial of the cause, it should become desirable to establish more accurately the exact quantum of wrongful delay, it would, no doubt, be proper that proof should be offered.

There is nothing here said which militates in any way against the intimation of the Court in Walker v. R. R. , 137 N.C. 163 , as to the requirement of proof, on the facts there presented. The question to which that intimation was addressed was in reference to the distance and time required for a freight train from Cumnock, N.C. to Graham, N.C. via Greensboro. Between these places there were fourteen stations, (644) and the point involved was the exact quantum of delay in delivery of the goods, with a view of fixing the amount of a penalty imposed by statute for each day's delay after a given time, allowed as free time. The accuracy required in such an investigation would make it entirely unsafe for a court to act without proof, and the case clearly comes within the limitation suggested that a court will only take judicial notice of such facts as are sufficiently notorious to make it safe and proper to do so. *Page 445

The facts testified to, and those of which the Court takes judicial cognizance, having established that there arises a presumption of actionable negligence against some one by reason of wrongful delay, our decisions are to the effect that on such facts there is also a presumption that the cause of action exists against defendant, in whose custody the goods are shown to have been after the delay occurred.

It may be well to note here that in using the terms prima facie and presumption, the terms do not import that the burden of the issue is changed, but that on the facts indicated the plaintiff is entitled to have his cause submitted to the jury under a proper charge as to existence or nonexistence and the effect of any presumption which may attach as indicated in the cases of Womble v. Grocery Co. , 135 N.C. 475 ; Stewart v. Carpet Co. , 138 N.C. 60 ; Overcash v. Electric Co., ante , 572.

To resume the line of principal discussion, the decisions referred to have established that when there has been a contract for continuous carriage of goods over a line composed of different and connecting carriers, and the goods are shown to have passed, under such contract, into the hands of the initial carrier in good shape, and condition, the shipper will have a prima facie right of action against any one of the carriers in whose custody the goods are proved to have been in a damaged condition. This was held as to initial carrier in Meredith v. R. R. , 137 N.C. 479 . And as to the ultimate or intervening carrier, in (645) Mitchell v. R. R. , 124 N.C. 236 ; the general principle being stated in the last case as follows: "Among connecting lines of common carriers the one in whose hands the goods are found damaged is presumed to have caused the damage, and the burden is on it to rebut the presumption."

It is true that in the cases cited the injury complained of was wrongful damage to the goods, and here the negligence charged for is wrongful delay; but the same reasons for establishing the principle of proof in the one case exist with equal force in the other.

As said by Judge Poland , in 32 Vt. 667 , cited with approval in Meredith's case, supra: "The ruling is placed upon the ground that this is all the proof the nature of the case permits to plaintiff, and that proof of delivery by defendant to the next road was a matter peculiarly within the power of defendant, and not at all in the power of the plaintiff." And in Mitchell's case, supra , the ruling is referred to the same principle: "It is a principle of law when a particular fact, necessary to be proved, rests peculiarly within the knowledge of one of the parties, upon him rests the burden of proof." And in 6 A. E., 609, it is said that "The liability of the initial carrier for delay is governed by the same rules which determine its liability for loss or injury of goods shipped to a point beyond its line." *Page 446

There would seem to be evidence here that each one of the connecting carriers in this case might be jointly liable for the default of the others; but we forbear giving definite expression on this question until the facts can be more fully developed in the further trial of the cause. Decisions which may be helpful in determining this question will be found in Rocky Mount Mills v. R. R. , 119 N.C. 694 ; Lindley v. R. R. , 88 N.C. 547 ; Phillips v. R. R. , 78 N.C. 294 ; Bradford v. R. R. , 7 (646) Richardson (S.C.), 201; Holliday v. R. R. , 74 Mo., 159 ; R. R., v. Weakly , 50 Ark. 397 .

There was error in dismissing the action as on judgment of nonsuit.

Reversed.

Hoke, J.,

after stating the case: It is said by McKelvey, in bis work on Evidence, that there is a class of facts of which a court may take judicial notice in its sound legal discretion, and supporting them is the single principle of common notoriety, the vital question being whether sufficient notoriety attaches to any particular fact as to make it safe and proper to assume its existence without proof. McKelvey on Evidence, pp. 33 and 34. Speaking further of this class of facts, the same author says: “In every case the particular circumstances must govern, and no general rule can be laid down. The decisions in particular cases are very useful, as they serve to furnish illustrations by way of analogy. They are not useful as precedents, inasmuch as the same facts may, at a different time and under different circumstances, be entitled to different treatment.”

Speaking to the same principle, Professor Wigmore, in his work on Evidence, sec. 2580: “Applying the same gen-' eral principle (as to judicial notice), especially in regard to the element of notoriousness, courts are found noticing from time to time a varied array of unquestionable facts ranging throughout the data of commerce, industry, history and natural science. It is unprofitable as well as impracticable to seek to connect them by generalities and distinctions, for the notoriousness of a truth varies with differences of time and place. It is even erroneous in many if not most instances to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance.” And in section 2581: “Among the common instances under this miscellaneous class are the facts of time, season and distance; though here, also, the quality of’ notoriousness will naturally vary with the place *642 and epoch as well as with the greater and less accuracy involved in the facts desired to be noticed.”

Accordingly, it is generally beld that the courts will take judicial notice of the placing of the prominent towns within their jurisdiction, and especially of county sites and their accessibility by railroads connecting them with the trunk lines of the country; and there.is well-considered authority to the effect that courts may also take such notice of the distance to prominent business centers of other States, their accessibility by railway, and the time between them by the usual routes and methods of travel, to the extent that these facts are sufficiently notorious as to make their' assumption safe and proper. Life Insurance Co. v. Robinson, 58 Fed., 723 ; Williams v. Brown, 65 N. Y. Supp., 1049 ; Morgan v. Farell, 58 Conn., 413 ; Pearce v. Langfit, 101 Pa. St., 507, 17 Amer. and Eng. Enc., 905; 16 Cyc., 861; Greenleaf on Evidence, vol. 1, sec. 5; Wharton on Evidence, vol. 1, sec. 340. And with this limitation, judicial notice may also be taken of the general business methods of railway and other well-known or quasi public corporations when these methods are universally practised or commonly known to exist. Wigmore on Evidence, sec. 2580; McKelvey on Evidence, 1032; Bank v. Hall, 83 N. Y., 338 ; Railroad v. Miller, 25 Mich., 275 .

The present case affords an apt illustration of the rule and the limitation suggested, and the doctrine has been stated at some length in order that the parties may be correctly guided in its application on the further trial of the cause. The Court can safely assume, as a matter of common knowledge, that the railroad lines connect Lenoir with the principal trunk lines leading north; that the city of Erie, Pa., is situated on Lake Erie, in said State, and accessible by railway. We can safely assume, further, that express companies are agencies organized for the purpose, at a higher price, of pro- *643 vidihg greater security and dispatch in the delivery' of freight, and that they select and secure for their business, as a rule, the most desirable and direct routes. The Court taking judicial notice of these facts, it musk follow, as a fair and reasonable inference, that fourteen days is too long a time for the transportation of freight by express between the two points— Lenoir, N. C., and Erie, Pa. — -and that, prima facie, there has been actionable negligence in the performance of the contract of carriage. Whilé, however, the Court may assume the general facts suggested so as to permit the inference that in the absence of satisfactory explanation the time taken has been too long between the two points, it would not follow that the Court should go further and take judicial cognizance of additional facts which would be required to determine how much too long it was. This would likely involve the existence of further facts entirely too minute for the application of the doctrine, such as the route selécted, the number and schedule of the trains, etc. “The principle of judicial notice is largely one of common sense,” says McKelvey, supra. In the one case the general facts could be assumed because sufficiently notorious to make it safe and proper to do so. In the other it would not be safe and might lead to an erroneous conclusion, working harm to the litigant; and, therefore, if, in the further trial of the cause, it should become desirable to establish more accurately the exact quantum of wrongful delay, it would, no doubt, be proper that proof should be offered.

There is nothing here said which militates in any way against the intimation of the Court in Walker v. Railroad, 137 N. C., 163 , as to the requirement of proof, on the facts there presented. The question to which that intimation was addressed was in reference to the distance and time required for a freight train from Cumnock, N. C., to Graham, N. C., via Greensboro. Between these places there were fourteen *644 stations; and tbe point involved was the exact quantum of delay in delivery of the goods, with a view of fixing the amount of a penalty imposed by statute for each day’s delay after a given time, allowed as free time. The accuracy required in such an investigation would make it entirely unsafe for a court to act without proof, and the case clearly comes within the limitation suggested that a court will only take judicial notice of such facts as are sufficiently notorious to make it safe and proper to do so.

The facts testified to, and those of which the Court takes judicial cognizance, having established that there arises a presumption of actionable negligence against some one by re.ason of wrongful delay, our decisions are to the effect that on such facts there is also a presumption that the cause of action exists against defendant, in whose custody the goods are shown to have been after the delay occurred.

It may be well to note here that in using the terms prima facie and presumption the terms do not import that the burden of the issue is changed, but that on the facts indicated the plaintiff is entitled to have his cause submitted to the jury under a proper charge as to existence or non-existence and the effect of any presumption which may attach, as indicated in the cases of Womble v. Grocery Co., 135 N. C., 475 ; Stewart v. Carpet Co., 138 N. C., 60 ; Overcash v. Street Railway, at present term.

To resume the line of principle discussion, the decisions referred to have established that when there has been a contract for continuous carriage of goods over a line composed of different and connecting carriers, and the goods are shown to have passed, under such contract, into the hands of the initial carrier in good shape and condition, the shipper will have a prima facie right of action against any one of the carriers in whose custody the goods are proved to have been in a damaged condition. This was held as to initial carrier in *645 Meredith v. Railway, 137 N. C., 479 . And as to the ultimate or intervening carrier, in Mitchell v. Railway, 124 N. C., 236 , tbe general principle being stated in tbe last case, as follows: “Among connecting lines of common carriers tbe one in whose bands tbe goods are found damaged is presumed to bave caused tbe damage, and tbe burden is on it to rebut tbe presumption.”

It is true that in tbe cases cited tbe injury complained of was wrongful damage to the goods, and here tbe negligence charged for is wrongful delay; but tbe same reasons for establishing tbe principle of proof in tbe one cage exists with equal force in tbe other.

As said by Judge Poland in 32 Vt., 667 , cited with approval in Meredith's case, supra: “The ruling is placed, upon the ground that this 'is all the proof the nature of the case permits to plaintiff, and that proof of delivery by defendant to the next road was a matter peculiarly within the power of defendant, and not at all in the power of the plaintiff.” Anri in Mitchell's case, supra, the ruling is referred to the. same principle: “It is a principle of law when a particular fact, necessary to be proved, rests peculiarly within the knowledge of one of the parties, upon him rests the burden of proof.” And in 6 Amer. and Eng. Enc.,- 609, it is said that “The liability of the initial carrier for delay is governed by the same rules which determine its liability for loss or injury of goods shipped to a point beyond its line.”

There would seem to be evidence here that each one of the connecting carriers in this case might be jointly liable for the. default of the others; but we forbear giving definite expression on this question until the facts can be more fully developed in the further trial of the cause. Decisions which may be helpful in determining this question will be found in Rocky Mount Mills v. Railway, 119 N. C., 694 ; Lindley v. Railway, 88 N. C., 547 ; Phillips v. Railway, 78 N. C., *646 294 ; Bradford v. Railway, 7 Richardson S. C., 201; Holliday v. Railway, 74 Mo., 159 ; Railway v. Weakly, 50 Ark., 397.

We hold that there was error in dismissing the action as on judgment' of nonsuit, and this will be certified, that the order to that effect may be set aside and the trial proceeded with.

Eeversed.