HAMILTON V. THE RAILROAD.

and overruled, were allowed to prove by the witness Hardin, that at the plaintiffs' instance he saw and applied to one Scales, an agent of the defendant at Statesville, for two cars to convey cattle to Richmond, as he wished to be present at the sales there on Monday, and was answered: "You know the rules of loading, and must be on time." That by daylight on Saturday morning, the next day after the interview, the cattle were at the chute or place of loading, but none of the company's servants were at the depot except the night-watchman; that with such assistance as he could get, the cars were pushed up, one car filled and the other nearly loaded. when the train came; that the work of loading was hurried up, and the cattle all put in, when the train moved, and without any attempt to attach the two cars, proceeded on its way and left them; that the cattle were then taken from the cars and left over till Monday, when they were again put on the cars and carried to Richmond, reaching their destination early the next day.

The plaintiff Hardin testified to the same effect as to getting the cattle on the cars, moving them to the chute for that purpose, and, just as the loading was finished and the cars ready, the starting of the train without them. Both witnesses testified to the damages from the needless putting the stock in and taking them out of the cars, estimating the damages at from fifty cents to one dollar on each of the fortynine animals sent.

The other damages claimed, were for expenses incurred by the delays at Statesville and Richmond before the next sale day (Friday) after their arrival

The testimony of the agent Scales, a witness for the defendant, is, that he made no contract for the transportation of the cattle, except that contained in the bill of lading, and this was with the plantiff Hardin; that the witness Bledsoe came to his office on Friday, and asked for two stock cars, and witness said he had them; that Bledsoe remarked, "I will

HAMILTON V. THE RAILROAD.

have two car loads of stock to arrive this evening," not saying when or where he wanted them sent. That on the same day one car was pushed up to the chute and another near to it; that on Saturday morning, plaintiff Hardin came to witness and asked why his cattle were not sent. Witness inquired if his stock were loaded, and the reply was, "not quite," and witness then said "we never hold trains." That this was between 7 and 8 o'clock, and that the train from the west is due at 7 a. m., and usually waits three minutes, but this morning was delayed ten minutes. The engineer in charge of the train stated, that when he started, there were a dozen cattle still to be put in the car at the chute, one hundred yards off over the track; but if loaded, he could have attached the cars to the train in fifteen or twenty minutes, and if delayed twenty minutes, would have missed connection with the Richmond and Danville train at Salisbury.

The conductor testified, that the last of the cattle were being put in the car when the train pulled out, and that the latest moment the train could leave and not lose connection, would be 7:30. This is the substance of the evidence bearing upon the material matters in controversy, which are whether any contract was entered into before Monday, and if so, upon whom rests the blame for the omissson to convey the stock on the train of Saturday?

I. The facts in proof are, in our opinion, sufficient to warrant the finding that the defendant company did undertake to furnish the cars and transport the cattle on the Saturday following, which, if carried out in detail, would have been at the usual charge, if the reduced rate was accepted, put in the form of the bill of lading afterwards issued. But it was not less an agreement, though arrested in its incipiency, by the defendant's failure, if it can be properly attributed to it, to carry it out at the time fixed upon. The undertaking to have the cars in readiness for the stock, imposed an obligation to take the initiatory steps towards transportation,

HAMILTON V. THE RAILROAD.

which was broken by its omission or neglect. The duty of putting the cattle in the cars, devolved upon the plaintiffs; that of preparing and having them ready, on the company. If this were not so, no contract whatever would ever be formed until the issue of the bill of lading, while this only determines the conditions of the transportation after the cars pass under the control of the company or its agents. This instrument regulates the terms of the second or executed contract, of which no complaint is made, but the antecedent one, broken by the neglect to forward on the Saturday before, is not merged in the latter, and its consequences averted. Indeed, the written instrument is but the execution of a preliminary agreement resting in parol, and its consummation.

II. Was there such default on the defendant's part as to expose it to a claim for damages?

From the defendant's own agent, it appears that he was expecting the stock to arrive on Friday evening, and the cattle were there early the next morning, and no preparations seem to have been made by the company's agents to have the cars in readiness to receive them in time for the early train. They were, however, about loaded, (some testimony affirming that both cars were loaded,) when the train moved off. There was twenty minutes' time to spare then before it was necessary to leave to insure connection at Salisbury. How long it would be necessary to wait to connect the cars with the train and prepare the necessary papers, does not appear, and at least during this interval, no effort was made to accomplish the result. It was early in the morning, and the plaintiffs were early at their work. They appear to have been in no default, and it would seem that equal promptness on the part of the company's employees would have insured the transportation. At least the jury might reasonably infer so from the facts detailed, and thus

HAMILTON v. THE RAILROAD.

place the blame of miscarriage of the arrangement upon the defendant, and its servants.

This disposes of the alleged error in regard to the refusal of instructions requested upon the question of the existence and validity of the contract, and those only remain to be. considered which relate to the measure of damages.

The controversy upon this inquiry, is confined to such as are claimed to result from the defendant's failure to have the cattle in Richmond on Monday, in time for the sales of that day, and a consequent loss of a favorable market. The extent of the loss is not shown in the evidence, and we must assume, if any damages were added on this account, they were in accordance with the proofs, and thus is drawn in question the charge of the Court as to the consideration and allowance of the claim for any.

Upon this point the instruction given is in these words: "If you find that Monday was a sale day, and the best sale day, when plaintiffs' beef-cattle could have been sold to the best advantage, and the plaintiffs wished their cattle to be in Richmond on that day, and this was known to defendant, and was in view of both parties when the contract was made, the plaintiffs would be entitled to have such special damages as actually result to them from these special circumstances." This is in response to the defendant's prayer for an instruction, which proposed to limit the recovery to the difference in value of the cattle, (that is, in deterioration and change in the market, as we understand,) when they ought to have arrived according to the contract, and did arrive, whereof no proof had been given; and, secondly, that special damages for loss of a bargain are not recoverable, unless the carrier knew all the circumstances, and agreed to deliver at a day certain, and knew that Monday was sale day in Richmond.

The finding on the second issue, seems to cover the point, and brings home to the defendant's agent a knowledge of

WILLEY V. THE RAILROAD.

the fact, and while the issue is in terms very general, no objection to its form was made as not presenting it to the jury.

The manner in which the jury were charged in regard to such additional damage, is in accord with the ruling in Lindley v. R. & D. R. R. Co., 88 N. C., 547; and furnishes no cause of complaint to the appellant.

No error.

Affirmed.

A. M. WILLEY v. THE NORFOLK SOUTHERN RAILROAD COM

PANY.

Easement-User-Abandonment-Presumption-RailroadsJudge's Charge.

1. The continuous use of a road as of right, for the prescribed time, is evidence of the acquirement of the easement, and in the absence of other evidence it is conclusive.

2. Interruptions of the use of an easement when brought to the knowledge of the claimant, rebut the presumption of a grant, unless such interruptions are promptly contested by the claimant and the easement re-asserted.

3. Interruptions of the use after the lapse of the time which raises the presumption of a grant of the easement, furnish evidence of, but do not constitute of themselves an abandonment.

4. As the presumption of a grant will arise by an adversary and continuous use of an easement for twenty years, so a disuse occurring afterwards for the same length of time, will raise a presumption of a surrender or extinction of the easement in favor of the servient tenement.

5. Where the plaintiff had a right to use a road which ran over the right of way of a railroad corporation, the corporation has no right to obstruct such road, when such obstructions were not necessary for purposes of the corporation.

6. Exceptions to the Judge's charge and prayers for special instructions must be made before verdict.