it to the defendant to allege any special, same rule has also been laid down in Bartcontract attempting to limit its liability. lett v. Oregon R. & Nav. Co. 57 Wash. 16, It is true that the cases are in conflict upon 135 Am. St. Rep. 959, 106 Pac. 487, decided this proposition; but the later, and in our in 1910, and also in Nelson V. Great opinion the better, considered cases, decided Northern R. Co. 28 Mont. 297, 72 Pac. 642, under the more liberal modern practice, where it is said: "We are aware that the sustain the view announced. In 6 Cyc. 514, decisions on this question are somewhat at it is stated that "the better rule is that the variance, but believe the better rule to be special contract containing conditions in that the existence of a special contract for favor of the carrier is properly a defensive the shipment of live stock, with stipulations weapon, to be used by the carrier when therein exempting the carrier from certain sued, and that the shipper may disregard liabilities, is no obstacle to the maintenance it, and sue for breach of common-law duty." of an action in tort, based upon the violaThis seems to be the rule in the Federal tions of the carrier's common-law liabilities, courts. See Southern P. Co. v. Arnett, and that the plaintiff has an election to 50 C. C. A. 17, 111 Fed. 849, approved in bring his action on the contract or in tort Empire State Cattle Co. v. Atchison, T. & for damages arising from a violation of the S. F. R. Co. (C. C.) 129 Fed. 480. The carrier's duties." To the same effect, see though he had agreed to go, it was held common-law liability, and a mule sound that the presumption of negligence existed when shipped arrived at its destination inwhere the stock was injured. Louisville & jured by cuts, wounds, or bruises, it was N. R. Co. v. McCarty, 9 Ky. L. Rep. 683; held that, although the shipper had agreed Cincinnati, N. O. & T. P. R. Co. v. Kern, to accompany the stock, the burden of proof 15 Ky. L. Rep. 656. was on the carrier to show absence of negligence. St. Louis & S. F. R. Co. v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131. But it was held that where an animal arrived sick with pneumonia, the presumption of negligence would not apply. And where the shipper was not in actual charge of live stock, although he had agreed to take charge, and the stock was injured, it was held that the carrier was prima facie | liable. Louisville & N. R. Co. v. Spalding, 8 Ky. L. Rep. 355. And where live stock was injured, it was held that the presumption was that the carrier was negligent, unless the owner agreed to accompany the stock and did so. Then the burden of proof would be on the owner, as, having care of the stock, he would be presumed to know how the injury occurred. Louisville & N. R. Co. v. Hawley, 10 Ky. L. Rep. 117. The exemption in a contract applied to such injuries as were not occasioned by the negligence of the carrier's servants. Where the carrier claimed that delay in delivering live stock was due to a mob, the burden of showing that the mob was without fault of the carrier was held to be upon the carrier. Louisville & N. R. Co. v. Thompson, 13 Ky L. Rep. 973. In Patterson v. Missouri, K. & T. R. Co. 24 Okla. 747, 104 Pac. 31, hogs died in the cars. Cold water had been poured on them while they were in a heated condition. The shipper agreed by the bill of lading to accompany the stock, but did not. The carrier set up the contract limiting the common-law liability, and voluntarily assumed the burden of proof on the question of negligence. Cattle were injured on the cars, the floors of which were defective. The contract provided that no recovery for injury could be had unless notice in writing was given before the stock was unloaded. It was held that the carrier should show that the injury was not caused by the breakage. Ohio & M. R. Co. v. Tabor, 98 Ky. 503, 34 L.R.A. 685, 32 S. W. 168, 36 S. W. 18. Where the contract limited the carrier's And in Weed v. International & G. N. R. Co. 21 Tex. Civ. App. 689, 53 S. W. 356, it was held that the burden of proof was on the owner of horses to show negligence of the carrier, where it was claimed that the horses contracted pneumonia from water The case does leaking from water tanks. not show a special contract, and does not show that the sickness was caused by the leaking water. The court said: "We have no means of knowing whether the condition of the water or the leakage of the tanks, or either, produced the pneumonia and ca tarrhal fever." character and condition of the car were held to be admissions that it was suitable and den of showing that it was unsafe and unsufficient, and to place on plaintiff the bur The statements in the contract as to the suitable. show that the carrier performed its duty. These admissions prima facie One of a carload of mules was injured. Western R. Co. v. Harwell, 91 Ala. 340, 8 So. 649. The court said: "Ordinarily, the rule as to the burden of proof is thus stated in general terms: The onus is primarily on the defendant to show that the injury did not result from negligence on its part, and the cause thereof was in the terms of the exception. The rule, however, should not be rigidly applied. That injury was not caused by neglect on the part of the carrier, and that it was within the terms of the exception, are relative propositions. The rule, accurately and reasonably interpreted, does not mean that the carrier must establish both of these propositions independently of each other. When the carrier makes a prima facie showing that the injury occurred without negligence on his Southern R. Co. v. Webb, 143 Ala. 304, 111 | fendant to negative the same? Am. St. Rep. 45, 39 So. 262, 5 Ann. Cas. 97. This conclusion is in logical accord with the proposition stated in the next subdivision of this opinion, and indeed this court has already practically aligned itself with those adhering to the rule as above stated. See Minneapolis, St. P. & S. Ste. M. R. Co. v. Home Ins. Co. 64 Minn. 61, 66, 66 N. W. 132. 2. The question, then, on this branch of the case, resolves itself into one of burden of proof, and may thus be stated: Did the existence of the special contract limiting the defendant's liability to losses occurring through its negligence cast upon the plaintiff the burden of proving that the loss was so caused, or was the burden upon the de part, this prima facie brings its cause within the exception." 2. Where shipper is in charge. The shipper by the bill of lading assumed the care and risk of a carload of horses. It was held that the burden of proof was on the carrier to show that it was not negli gent. Hull v. Chicago, St. P. M. & O. R. Co. 41 Minn. 510, 5 L.R.A. 587, 16 Am. St. Rep. 722, 43 N. W. 391. The train bucked snowdrifts. The court said the carrier must prove that the loss occurred by reason of an excepted cause. "If the contract, instead of specifying certain exceptions to the liability, is general in its terms, and excepts from the liability all causes of loss or damage but the carrier's negligence, how does the carrier show that the loss or damage was within the exception but by proof that it occurred from a cause other than his negligence." Hogs were shipped, the owner agreeing to accompany the stock, and releasing the carrier from all damages which were not caused by the negligence of the carrier. Some four hogs died. It was held that, as the carrier failed to negative negligence by proof, the plaintiffs were entitled to judgment in some amount. Johnstone v. Richmond & D. R. Co. 39 S. C. 55, 17 S. E. 512. The court followed Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717, 5 Sup. Ct. Rep. 151, as to valuation. Cattle and hogs were in a car, and the cattle were injured and some hogs were lost. The contract required the shipper to care for the stock, and exempted the carrier except for gross negligence. It was held that the burden of proof was on the carrier to show that the loss occurred from an excepted cause, and that it was not negligent. Johnson v. Alabama & V. R. Co. 69 Miss. 191, 30 Am. St. Rep. 534, 11 So. 104. Where a special contract was made and a loss occurred, it was held that the carrier could not claim exemption from liability unless he showed, not only that the cause of the loss was within the limitation of the contract, but that it was without We do not "If the consider this an open question. It may be contended that the introduction negligence on its part. South & North Ala. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. In this case the owner of the stock shipped agreed to assume care of the stock, and to feed and water the same. A steer died in transit. A shipper of live stock agreed to accom. pany the same and assume charge of loading. S. C. Stat. 1893, § 1678, provided that no railroad company in transportation of animals shall overload the cars. It was held that the burden of proving that injury to the stock was within an exemption clause, and that the carrier was not negli gent, was upon the carrier. Crawford v. Southern R. Co. 56 S. C. 136, 34 S. E. 80. But in Texas & P. R. Co. v. Arnold, 16 Tex. Civ. App. 74, 40 S. W. 829, where the shipper of live stock agreed to take care of the same, and did accompany them, it was held that the burden was on the shipper to show negligence of the carrier in failing to feed and water. The court said: "But in shipments of live stock, where the owner accompanies the stock under a special contract to take care of them himself, and is given an opportunity to do so, the reason for the rule that the facts are peculiarly, if not exclusively, within the knowledge of the carrier, does not apply, and hence the rule itself is held to be inapplicable." That case was distinguished in Texas & P. R. Co. v. Dishman, 38 Tex. Civ. App. 277, 85 S. W. 319. II. Burden on shipper. a. Generally. Where goods are damaged while in the possession of the carrier, it is required to show that such injury came from an excepted cause. The majority of cases hold that then the burden of proof is on the shipper to show that the damage was caused by the negligence of the carrier. In an action against a steamship company for loss of money shipped by express on a steamer which burned, it was held that, the carriers having succeeded in restricting their liability as carriers by spe of the special contract in evidence before it to establish the absence of negligence on the plaintiff had rested changed the rule, its part. Furthermore, the evidence in or rather rendered it inapplicable. No such question seems to have been offered upon result followed, however, as this was done the issue of contributory negligence, which by the defendant, and the plaintiff, during was submitted to the jury, and of which the entire trial, based his claim to a recov- we will treat in its place. But if it may be ery solely upon the common-law liability. claimed that the conclusions above stated This distinction is clearly pointed out in are erroneous, the same result must neverJohnson v. West Jersey & S. R. Co. 78 N. J. theless follow, for the settled case shows L. 529, 138 Am. St. Rep. 625, 74 Atl. 496, that most of the evidence relative to the 20 Ann. Cas. 228. cause of the fire and responsibility therefor is not contained therein. Error is never presumed, and what this evidence was we know not. The only evidence disclosed by the record as to the origin of the fire was that above recited concerning the man Patient and his conduct, and this we think was manifestly insufficient to require the court to submit to the jury the question of whether the defendant had sustained the burden upon' cial agreement, the burden of proof that the loss was occasioned by the want of due care or by gross negligence was on the libellant. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. ed. 465. The carriers gave notice in bills of lading that the expressman was alone responsible, and that the steamboat company assumed no risk. That case and Selby v. Wilmington & W. R. Co. 113 N. C. 588, 37 Am., St. Rep. 635, 18 S. E. 88, were distinguished in Mitchell v. Carolina C. R. Co. 124 N. C. 236, 44 L.R.A. 515, 32 S. E. 671. And where the carrier proved that gold coin was stolen before leaving port, by a person not belonging to the ship, and the bill of lading excepted loss occasioned by "thieves," it was held that the burden of proof was on the libellants to prove that the loss might have been avoided by the exercise of reasonable and proper care on the part of the ship. The Saratoga, 20 Fed. 869. The ship was held negligent in not securing the hold with proper lock, and also in not preventing this man from carrying such a heavy load of coin in daylight from the ship. The burden of proof was held to be, first, on the carrier to show that the damage was occasioned by one of the excepted causes; then, the burden of proof was held to be on the shipper to show negligence of the carrier. Turner v. The Black Warrior, 1 McAll. 181, Fed. Cas. No. 14,253; The Rocket, 1 Biss. 354, Fed. Cas. No. 11,975. In Western Transp. Co. v. Newhall, 24 Ill. 466, 76 Am. Dec. 760, it was said that "we understand the law to be that when goods are received by a common carrier, to be carried under the usual bill of lading, it is incumbent on him to show that the injury resulted from one of the causes excepted in it. In this case the defendants were bound to show that the injury was caused by the weather, accidental delays, or by the natural tendency of the powder to decay, neither of which was shown. Had that been shown, then the burden of proof would have been shifted on the plaintiff to prove negligence, but not until then." We hold, therefore, that the verdict cannot be disturbed on the ground that the instructions allowed a recovery without proof of negligence. A new trial should never be OC After the damage to goods had been established, it was held that the burden was on the carrier to show that it was casioned by one of the exempted perils. When this was done, the burden was shifted on the shipper to show that the damage might have been avoided by the exercise of reasonable care on the part of the carrier. Mitchell v. United States Exp. Co. 46 Iowa, 214. And where the express company's receipt stipulated for exemption from liability beyond $50, for losses occurring through its negligence, it was held that negligence was to be proved affirmatively by the plaintiff. Magnin v. Dinsmore, 56 N. Y. 168, distinguished in Alabama G. S. R. Co. v. Little, 71 Ala. 611. And where a shipper was held bound by the valuation fixed in an express receipt, it was held that the company was not bound to inquire as to the true value; that the burden of bringing to the shipper notice of the change of common-law liability was on the carrier, but that when that was established the burden of proving negligence in the carrier was on the shipper. Kallman v. United States Exp. Co. 3 Kan. 205. In Adams Exp. Co. v. Loeb, 7 Bush. 499. where a contract with an express company provided that they were forwarders only, and should be liable only for fraud or gross negligence, it was held that in an action to recover for lost goods, not delivered in New York, the burden was on the plaintiff to show such fraud or negligence. A bill of lading provided, "Nor shall neg. ligence be presumed against any carrier." It was held that the burden of proof was upon the shipper to show that injury occurred, and that negligence caused the injury. Merchants' & M. Transp. Co. v. Eichberg, 109 Md. 211, 130 Am. St. Rep. 524, 71 Atl. 993. A shipment of paper bags was damaged. A special contract exempted the defendant from liability on account of delay. It was held that the burden of proving negligence of the carrier was upon the shipper. Anderson v. Atchison, T. & S. F. R. Co. 93 Mo. App. 677, 67 S. W. 707. The evidence granted in a civil action for errors in instructions, however egregious they may be, where the verdict was the only one warranted by the law applicable to the case. Dunnell's Dig. § 7170. of limited liability, to the same extent as if the plaintiff himself had executed it. It must also be conceded on this branch of the case that the necessary preliminary steps to establish the tariff specified in the contract, and also others, had been taken. Unless, therefore, it conclusively appeared from the evidence that this contract was invalid by reason of the circumstances under which it was entered into, then the verdict cannot stand, and there must be a new trial; for the instructions in effect took the special contract out of the case, and left only the right to recover at common law. 3. The special contract contained a provision to the effect that the shipper declared that the value of the horses did not exceed $100 each, the shipper agreeing to pay for the carriage at the published rate applicable to shipments of live stock value at not more than the sum stated. The defendant insists that this was a valid limitation of its liability as to amount, and that in no event could the plaintiff recover a greater sum. For the purposes of discussion we will assume that Matson had authority to bind the plaintiff by a contract of delay was sufficient to raise the presump-powering cause, it is charged that his negtion of negligence. ligence contributed to the loss, the proof of this must come from those who assert or rely on it." In Kirby v. Adams Exp. Co. 2 Mo. App. 369, where a trunk was lost, the cases of Levering v. Union Transp. & Ins. Co. 42 Mo. 88, 97 Am. Dec. 320, and Ketchum v. American Merchants' Union Exp. Co. 52 Mo. 391, were followed as to the burden being on the carrier to show want of negligence, where the contract exempted from liability except for gross negligence. These cases, on which the Kirby Case relied, were overruled in Witting v. St. Louis & S. F. R. Co. 101 Mo. 631, 10 L.R.A. 602, 20 Am. St. Rep. 636, 14 S. W. 743. In Canfield v. Baltimore & O. R. Co. 93 N. Y. 532, 45 Am. Rep. 268, the court said: "When the liability of a party is predicated upon his negligence in the performance of a duty which rests upon him by virtue of a contract or otherwise, the burden is always upon the plaintiff to establish the fact of negligence to the satisfaction of the jury." Velours were shipped, the bill of lading exempting the carrier from liability for "wet." It was held that the burden of proof as to negligence of the carrier was on the shipper, and that evidence that the goods were shipped in good order and were not delivered in the usual time, and that they were wet when delivered, was not proof of negligence. Dobson v. Central R. Co. 38 Misc. 582, 78 N. Y. Supp. 82. A lot of rails were shipped by boat, 88 tons to one person and 180 tons to another. At delivery one consignee received 20 tons less than billed, and the other 8 tons more. The bill of lading provided, "Vessels not accountable for number of pieces or weight." It was held that where the consignee had undertaken to separate the lot at delivery, and ship it on cars, the burden was on him to show negligence on the part of the ship. Eaton v. Neumark, 37 Fed. 375. These circumstances are practically undisputed, and we will state them as favorably to the defendant as the testimony will The following cases hold that, before the shipper is required to prove the negligence of the carrier, it is incumbent on the latter to bring the injury within the exemption of the bill of lading: Vonfiglio v. Lake Shore & M. S. R. Co. 125 Mich. 476, 84 N. W. 722; Baltimore & O. R. Co. v. Brady, 32 Md. 333; Toledo, W. & W. R. Co. v. Hamilton, 76 Ill. 393; Mahaffey v. Wisconsin C. R. Co. 147 Ill. App. 43. The burden of proof was held to be on the carrier to show that the whole of the damage to the cargo came from the excepted cause, exempting from liability, in the bill of lading. If it failed to show the extent and degree of this exoneration, it would be held liable for all the damage. Speyer v. The Mary Belle Roberts, Sawy. 1, Fed. Cas. No. 13,240. After damage was established it was held that the burden was on the ship to show that it was occasioned by perils that exempted from liability in the bill of lading. The Keokuk, 1 Biss. 522, Fed. Cas. No. 7,721. The burden of proof was held to be on the carrier to show that a cargo of sugar was damaged by reason of the causes excepted in the bill of lading. Argo S. S. Co. v. Seago, 42 C. C. A. 128, 101 Fed. 999. The evidence of the carrier was to the extent that there was no damage at all. And where the evidence of the carrier failed to show that the loss and damage to a cargo of tea came from a cause excepted in the bill of lading, it was held that the carrier would be liable. The Mascotte, 48 Fed. 119. On appeal it was held: "The burden of proof is on the steamship to overcome the effect of the acknowledgment in the bill of lading of the reception of the goods on board in good order and condition.'" 2 C. C. A. 399, 1 U. S. App. 251, 51 Fed. 605. In Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. ed. 909, where it was held that a carrier was not liable for damages from sudden flood caused by act of God, the The onus was held to be on the master court said: "If, after he has excused him- (whether he reshipped the goods or not) to self by showing the presence of the over-show that the goods were lost, or so in warrant: Previously to the execution of, tract and said, "You know what this is for; the contract there was no conversation be- you got to get release to ride with them;" tween Matson and the defendant's agent and that Matson replied, "I know all about concerning the kind or value of the horses it; I signed good many of them;" and on to be shipped; nor was there any talk about cross-examination the agent admitted havfreight rates, tariffs, or charges to be made ing said to Matson that he would have "to for the transportation, and nothing was release the stock in order to go with the said about any other paper or contract. stock." It is clear, also, that Matson's According to the testimony of the agent, his purpose in executing the contract was to only thought seems to have been to secure secure the right to accompany the stock. the execution of a contract covering the There was, in short, a total absence of the shipment, and there was nothing even in usual conversation necessarily had between the nature of a meeting of minds upon the parties preliminary to the execution of a particular contract here involved. The written contract, and of consensus concernagent testified that he requested Matson to ing the subject-matter. come into the station and fix out the contract, not a contract, and that when he came in he (the agent) prepared the conjured as to prevent delivery, by the un-ligence of the carrier. On evidence of the avoidable accidents of the river. Dunseth v. Wade, 3 Ill. 285. The bill of lading authorized the carrier to reship on "any good boat." It reshipped and the goods were lost. b. Fire. The weight of authority is that where the bill of lading exempts for loss by fire, the shipper has the burden of proof to establish that the fire was caused by the negligence of the carrier. By a bill of lading for cotton the carrier was exempted from liability for loss by fire "unless the same be proved to have occurred from the fraud or gross negligence of the company or companies, their agents or servants." It was held that the burden was on the plaintiff to establish that the cotton was burned by the fraud or gross negligence of the carrier. Platt v. Richmond, Y. R. & C. R. Co. 108 N. Y. 358, 15 N. E. 393. It is true that a meeting of minds is usually presumed from the execution of a written instrument, but here all the sur shipping of the goods and their destruction by fire while in possession of the carrier, it was held that the court properly directed a verdict for the defendant in the absence of any evidence of negligence. chaels v. Adams Exp. Co. 71 N. J. L. 41, 59 Atl. 142. Mi An express bill of lading exempted for loss from fire unless caused by fraud or gross negligence of the carrier. It was held that where the goods were burned, the burden of proving that the loss was caused by reason of the fraud or gross negligence of the defendant was on the plaintiff. Landsberg v. Dinsmore, 4 Daly, 490. A fire department extinguished a fire on a tug, but destroyed the cargo. The bill of lading contained the usual exemptions from fire risk. It was held that the burden of proof was on the shipper to show that the fire was the result of negligence. The Buckeye, 7 Biss. 23, Fed. Cas. No. 2,084. The cause of the fire was unknown. A bill of lading exempted for loss by fire. The freight was destroyed by a mob firing the same. It was held that the burden of proof was on the owners of the freight to show that the loss was caused by the negligence of the carrier. Wertheimer v. Pennsylvania R. Co. 17 Blatchf. 421, 1 Fed. 232. And where the bill of lading provided no liability for fire unless from gross negligence, it was held that the burden of proof as to negligence in such a case was on the plaintiff. Cochrane v. Dinsmore, 49 N. Y. 249. Church, Ch. J., said: "It cannot be said, as a matter of law, that the fact of the burning of the ship, and the fact that the witnesses called could not account for it and the other circumstances, absolutely established negligence. The most that can be said is that these facts were competent to found an inference of a want of care." And where the bill of lading exempted for loss by fire unless it occurred through the negligence of the carrier, it was held that proof by the carrier that the loss occurred through the excepted peril constituted prima facie a complete defense. The burden of proving negligence of the carrier was held to be on the owner. Schaller v. Fed. 91. Chicago & N. W. R. Co. 97 Wis. 31, 71 N. W. 1042. This was said to be the first ruling had on this question in this state. A bill of lading provided for exemption from damage by fire unless caused by neg Cotton was in possession of a railroad, at a compress company plant, the bill of lading exempted the railroad from liability for fire. It was held that, after the damage to goods was established, the burden was on the carrier to show that it was exempted by the bill of lading. But then the burden would be on the plaintiff to establish negligence of the defendant. v. Texas & P. R. Co. 194 U. S. 427, 48 L. ed. 1053, 24 Sup. Ct. Rep. 663, 16 Am. Neg. Rep. 659, affirming 51 C. C. A. 76, 113 Cau And the burden of showing that loss by fire, caused to a shipment of flour on the wharf, was occasioned by the negligence of the carrier, was held to be on the shipper where such loss was excepted in the bill of lading. Washburn-Crosby Co. v. William |