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rounding facts and circumstances speak to, enforced when it is made to appear that the contrary, and the question is whether they are just and reasonable, and were the contract in question can be sustained fairly entered into by the shipper, with under the principles applicable to contracts full freedom of choice. It is the settled of its character and kind. Upon the state doctrine of this court that contracts so of facts recited, the court, had it submitted made, if fair, just, and reasonable, will be the question of the validity of this contract upheld as a proper mode of securing a due to the jury; would have been obliged to proportion between the amount for which state the law applicable thereto substan- the carrier may be responsible and the tially as laid down by Chief Justice Start in freight charges he receives, and of protectOstroot v. Northern P. R. Co. 111 Minn. ing himself from extravagant valuation in 504, 508, 127 N. W. 177, 178, and as fol- case of loss; but a mere arbitrary valuation, lows: “The alleged contract is an attempt simply for the purpose of limiting the carby a common carrier to limit its common rier's liability, will not be sustained as just law liability for the loss of the goods. Such and reasonable within the rule.” contracts are exceptions to the common-law If the circumstances surrounding the exrule of liability, and they should be care-ecution of the contract here involved refully scrutinized by the courts, and only 'quired the court to submit to the jury the Johnston & Co. 60 C. C. A. 187, 125 Fed., fire, that the accident did not occur through 273.

any fault, want of care, or negligence on And where the bill of lading exempted its part or the part of its agents or emfor loss by fire, and freight was burned, ployees. This case was overruled in Witit was held that the burden was on the ting v. St. Louis & S. F. R. Co. 101 Mo. shipper to show negligence of the carrier. 631, 10 L.R.A. 602, 20 Am. St. Rep. 636, Little Rock, M. R. & T. R. Co. v. Harper, 14 S. W. 743. 44 Ark. 208; Little Rock, M. R. & T. R. And where the bill of lading exempted Co. v. Corcoran, 40 Ark. 375; Little Rock, from damage from fire and flood, it was M. R. & T. R. Co. v. Talbot, 39 Ark. 523; held that the burden of proof as to the St. Louis, I. M. & S. R. Co. v. Bone, 52 carrier's negligence was upon the plaintiff. Ark. 26, 11 S. W. 958.

Johnson v. West Jersey & S. R. Co. 78 N. J. And the burden of proof was held to be L. 529, 138 Am. St. Rep. 625, 74 Atl. 496, on the plaintiff to show negligence where 20 Ann. Cas. 228. It was held that mere loss by fire was exempted in the bill of nondelivery and proof of fire did not establading. Insurance Co. of V. A. v. Lake Erie lish negligence. Rags were burned in tran& W. R. Co. 152 Ind. 333, 53 N. E. 382. sit. The court said: "Neither is any serious In Lamb v. Camden & A. R. & Transp. danger to be apprehended from the imposi- Co. 46_N. Y. 271, 7 Am. Rep. 327, reverstion of unfair and unjust terms upon the ing 2 Daly, 454, a bill of lading exempted shipper by the carrier. The form and con- for damage by fire. It was held that to enditions of the contracts of the carrier are title the plaintiff to recover for such a in most cases subject to legislative control, cause he was bound to prove that the fire and it is to be presumed that, whenever it which consumed the cotton resulted from becomes necessary to protect the people of the negligence of the defendant. Allen and the state from imposition, the legislative Peckham, JJ., dissented. The latter held remedy will be applied.”

that plaintiff proved a prima facie case of And where the bill of lading exempted negligence in defendant's failure to deliver from liability for fire, it was held that the the cotton. The proof by defendant that burden of proving negligence causing such the goods were destroyed by fire, and the loss was on the shipper. The Emily v. Car- exemption clause, did not make a prima ney, 5 Kan. 645; Otis Co. v. Missouri P. R. facie defense. A presumption of negligence Co. 112 Mo. 622, 20 S. W. 676; Indian is shown by proof of fire. He said: “This apolis, D. & W. R. Co. v. Forsythe, 4 Ind. precise question as to the burden of showApp. 326, 29 N. E. 1138. The court said ing the exercise or the absence of ordinary in the latter case: “We cannot agree with care, where goods are consumed by a fire counsel that the mere fact that the goods occurring upon the carrier's own premises, were destroyed by fire while in the appel- is not inconsistent with the position that lant's possession was conclusive or even pre upon the plaintiff ultimately rests the onus sumptive proof of negligence."

of establishing the negligence.” The knowlAnd, where an express receipt exempted edge is exclusively with the carrier. An the carrier from loss by fire, it was held ordinary fire does not occur without neglithat the burden of proof as to negligence of gence as a general rule. the carrier was on the shipper. Smith v. In J. Russell Mfg. Co. v. New Haven S. American Exp. Co. 108 Mich. 572, 66 N. W. B. Co. 50 N. Y. 121, that case was dis479.

tinguished. In Levering v. Union Transp. & Ins. Co. In Koenigsheim v. Hamburg & A. Packet 42 Mo. 88, 97 Am. Dec, 320, where cotton Co. 17 N. Y. Week. Dig. 405, it was said: was burned, it was held that it devolved “The case of Lamb v. Camden & A. R. & upon the carrier to show, notwithstanding Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327, the exception exempting it from loss byl does not hold that the precise nature of

question of whether it was fair, just, and contrary, the verdict could not have been reasonable, and for the purpose of securing sustained, then the defendant cannot now a due proportion between the amount of complain of the failure to submit. This is the carrier's liability and the compensa- the general test of the propriety of refusing tion to be received for the carriage, then to submit questions of fact to the jury, and the court was plainly in error in refusing when it is applied to the facts of this case to submit such question to the jury; but there can be, we think, but one result, and if, on the other hand, it appears that under that is that, under the rule announced in the facts such was not the case, that the Ostroot v. Northern P. R. Co. supra, the contract was not fairly entered into with action of the trial court must be sustained. freedom of choice, that the valuation was It is clear from the case last cited that this arbitrary and plainly for the purpose of court is not prepared to sustain all limited limiting the carrier's liability, and all this liability contracts regardless of the circumto such extent that if the question had been stances under which they were entered into submitted, and the jury had found to the' (see also O'Connor v. Great Northern R. the negligence must be shown, and it is McFall v. Wabash R. Co. 117 Mo. App. 477, clearly intimated that simply proving the 94 S. W. 570. fire in that case would have called upon the A contract for shipping hogs restricted defendant for explanation.”

the carrier's liability to that resulting from A bill of lading contained a general ex negligence. It was held that the burden emption from liability for loss by fire. Loss devolved on plaintiff to show that the unhaving occurred from this cause, it was usual delays were the result of negligence. held incumbent on the plaintiff to show that Bushnell v. Wabash R. Co. 118 Mo. App. the fire was the result of the defendant's 618, 94 S. W. 1001. The court said: "Cir. negligence, or that the loss resulted from cumstances that even slightly tend to show some breach of the duty. Whitworth v. a negligent origin of the unusual delay will Erie R. Co. 87 N. Y. 413. The freight support an inference of negligence." house containing the cotton was burned. And where cattle were delayed unreasonIt was held the occurrence of a fire would ably and one was injured, crippled, and not alone justify the inference of negligence. bruised, it was held that the burden of

And where an express receipt exempted proof was on plaintiff to show the carrier's for liability from fire, it was held that the negligence, but not necessarily to show that plaintiff was required to prove that a fire the injury was caused by human agency. destroying his goods was due to negligence Libby v. St. Louis, I. M. & S. R. Co. 137 of the carrier. Proof of a fire did not give Mo. App. 276, 117 S. W. 659. rise to the presumption of negligence. It The special contract was not pleaded and was further held that, before the express was improperly used before the trial court. company could be held liable for more than A bill of lading for a horse exempted $50 value, the plaintiff was obligated to liability for injury except such as should prove some affirmative act of wrongdoing arise from gross negligence. The horse was on the part of the carrier. Rowan v. Wells, badly injured, and in a suit for negligence F. & Co. 80 App. Div. 31, 80 N. Y. Supp. only the plaintiff was required to prove the 226. The value was asked, but not given. allegations. But it was held sufficient where

And where a bill of lading exempted lia- plaintiff alleged that the horse was injured bility for loss by fire, a dog in a crate es by the careless shifting and colliding of caped and was replaced in the crate in the cars, and the evidence showed that the freight house, which was burned shortly horse's back was broken by suddenly stopafterwards, from, it was supposed, the dog ping the cars. There was no objection to upsetting a kerosene lamp. It was held this evidence. Newman v. Pennsylvania R. that the burden was on plaintiff, whose Co. 33 App. Div. 171, 53 N. Y. Supp. 456, freight was burned, to establish negligence 5 Am. Neg Rep. 73. of the carrier. Van Akin v. Erie R. Co. 92 Hogs were taken under a contract proApp. Div. 23, 87 N. Y. Supp. 871.

viding that the carrier was not an insurer; that the carrier would not be liable for in

juries caused to the animals by themselves, c. Live stock.

nor from loading or unloading, nor for in

jury from delay. It was held that the 1. Generally.

burden was on the shipper to prove that The general rule is that where the live the injury to the hogs was from the failure stock is in the charge of the carrier, the to "wet them down." Peterson v. Chicago, shipper has the burden of proving negli- M. & St. P. R. Co. 19 S. D. 122, 102 N. W. gence of the carrier, if the shipping, con 595. tract exempts the carrier from special lia- And where a carrier restricted the liability.

bility for live stock by special contract, the Hogs were injured and some escaped. burden of establishing negligence was held The contract provided exemption except for to be on the shipper. Kansas P. R. Co. v. negligence. Proof by the shipper that there Reynolds, 8 Kan. 623. was a wreck and delay was held sufficient A clause in a live-stock contract required to shift the burden of proof to the carrier. I a claim for damages to be made within a

an

Co. 118 Minn. 223, 228, 136 N. W. 743; , requested by the defendant. The court, O'Malley v. Great Northern R. Co. 86 Minn. however, did charge, in effect, that the de380, 382, 90 N. W. 974); and yet, if this fendant would not be liable if Matson concontract is to be sustained, it is difficult tributed to the loss by negligence in lookto conceive of any state of facts under ing after the horses or in caring for them which such a contract would not have to after they were loaded.

Furth nore, a be upheld, except in case of fraud or duress. special interrogatory was submitted to the Our conclusion is that the trial court did jury upon this question, and the jury renot err in holding that the special contract turned a special verdict negativing neglidid not limit the plaintiff's right of re- gence in such regards. covery in the matter of the value of the From the defendant's brief we gather horses.

that it was claimed on the trial that the 4. The defendant complains of the court's evidence warranted a finding that Matson instructions concerning contributory negli- allowed a drunken friend to go into the car gence, and of its failure to instruct as for the purpose of stealing a ride, and that

ertain time. It was said: “But the clause , of wilful misconduct. Graham V. Belfast in question is not one exempting the carrier & N. C. R. Co. (1901) 2 I. R. 13. from its common-law liability, or limiting The warranty that a ship was fit at the that liability, but one imposing a condition. beginning of a voyage to safely carry the

Hence, when the shipper seeks a re- cargo received by her was held 'not implied covery he must show compliance with the if the parties contract otherwise. The burcondition upon which recovery may be had.” den of proof was held to be on the shipper Kalina v. Union P. R. Co. 69 Kan. 172, 76 to show negligence. The Tjomo, 115 Fed. Pac. 438.

919. In this case the bill of lading acA horse was injured by reason of being cepted the fittings and fastenings for cattle carried on an open car. The bill of lading as satisfactory, but some cattle were lost. exonerated the carrier from all damages The evidence showed unprecedented caused to stock, and the shipper assumed storm. This put the burden on libellant all risk. It was held that this would not to prove negligence in the construction of excuse negligence, but as to that the bur: the fittings and stowage of the cattle. den would be upon the shipper. That if the

A bill of lading assumed on the part of shipper required a box car, and it was not the shipper of live stock all risks of injury given, this would be negligence and shift or loss to his stock by reason of defects in

i the cars. It was held that the burden of the burden of proof to the carrier to show that the loss was without its fault. Sager proof was on the carrier not only to show v. Portsmouth, S. & P. & E. R. Co. 31 Me. that a limited contract was made, but also

that the loss in question arose from a 228, 50 Am. Dec. 659.

And where the shipper of live stock cause excepted in the contract. St. Louis, agreed to release the carrier, from claim for I. M. & S. R. Co. v. Lesser, 46 Ark. 236.

The court said: "And this fact must be loss, except for gross negligence of the car: established with reasonable certainty, and rier, it was held that the burden of proof not rest upon conjecture or possibility.” was on the shipper to show negligence of A horse was injured by nails in the car. the carrier. Bankard V. Baltimore & 0.

And where the owner of live stock was R. Co. 34 Md. 197, 6 Am. Rep. 321. Detached or broken-loose cars, colliding with burden was on the carrier to show that it

not with the same, it was held that the the cattle cars, breaking of a wheel, col. lisions, and delays were held of themselves natural propensity of the stock to injure

was excused from liability by reason of the no proof of negligence.

themselves or each other. Wabash R. Co. Two head of cattle were missing at de

v. Priddy, 179 Ind. 483, 101 N. E. 724. livery. The shiper assumed the risk except

Quite a few Iowa cases place burden on for gross negligence. It was held that the carrier to disprove negligence, but in those burden was on the plaintiff to show that

cases there does not appear to have been the negligence of the carrier caused the exemptions in the bill of lading, loss. George v. Chicago, R. I. & P. R. Co.

Live stock were injured and killed in 57 Mo. App. 358.

transportation. The defendant claimed that And, where cattle were carried under a the contract exempted from all liability excontract by which the carrier was to be cept for collision or derailment. It was liable only in case of negligence, it was held that such exemption was void ; that held that the burden of proving negligence the burden was on the carrier, which rewas on the plaintiff. Harris v. Midland R. ceived property for transportation, to show Co. 25 Week. Rep. 63. In this case one of the circumstances which excused or relieved the cows was killed, and its spine was in- it from liability. McCoy v. Keokuk & D. jured and shoulder broken.

M. R. Co. 44 Iowa, 424. Poultry was shipped by contract exempt

2. Where ipper is in charge. ing the carrier from all damages not caused by wilful misconduct. The poultry was Some cases put stress upon the fact that injured by delays. It was held that the the shipper agreed to and did take charge, burden was on plaintiff to show evidence l and that the reason of the rule stated by

on

such act was the proximate cause of the seem fairly to cover the defendant's theory plaintiff's loss. The burden of proof to es in this regard in any event. tablish this was upon the defendant, and The defendant also assigns error upon the it is very doubtful whether the record con- failure to give the following instruction retains sufficient evidence to warrant any such quested by it: "You are instructed that, conclusion. However, evidently on this the according to the testimony on behalf of the ory, the court, at the defendant's request, plaintiff, Matson was to load the horses and instructed the jury that “if Matson know- go with them to Stillwater. If you find ingly permitted anyone to go into the car that it was the understanding and agreefor the purpose of stealing a ride, or while ment of the plaintiff and defendant that loading negligently allowed anyone to go Matson should care for the horses while in into the car for that purpose, and the car defendant's possession, and you should furwas set on fire and the horses destroyed ther find that Matson negligently failed to by reason of Matson's doing so, your verdict properly care for the horses, and that as a must be for the defendant." This would' result of Matson's negligence the horses some authorities that the burden of prov-, undertook to perform. Terre Haute & L. ing is on him who knows, therefore im. R. Co. v. Sherwood, 132 Ind. 129, 17 L.R.A. poses on the shipper the burden of proving 339, 32 Am. St. Rep. 239, 31 N. E. 781. negligence of the carrier.

The shipper agreed to load a jack, and So, where the contract to carry live that the carrier should not be liable for stock limited the carrier's liability, and the any damage from improper loading. It shipper remained in charge, it was held that was held that it was incumbent upon the the burden of proof as to negligence of the shipper to show that the freight was incarrier was on the shipper. St. Louis, I. jured by the carrier's negligence. Crow v. M. & S. R. Co. v. Weakly, 50 Ark. 397, Chicago & A. R. Co. 57 Mo. App. 135. 7 Am. St. Rep. 104, 8 S. W. 134.

And where the owner agreed to and did The bill of lading provided that the take care of live stock, it was held that shipper should load the cars, unload, feed, the burden of proving negligence was water, and attend to them, see that they the plaintiff. McBeath v. Wabash, St. L. were fastened. A tramp was taken out of & P. R. Co. 20 Mo. App. 445. the car while in transit, and a fine jack A contract provided that live stock was died.

not to be transported in any specified time, A contract to carry live stock provided that the carrier was to be exempt from liathat the shipper should accompany the bility for damage not the direct result of same, and that the carrier should not be negligence, that the shipper should take responsible for care of the stock, but only charge of and assume all risk. It was held liable for actual negligence of the em- that the burden of proof was on the plainployees. It was held that where the shipper tiff to show unreasonable delay and injury accompanied the car and had charge of the caused thereby. Gilbert v. Chicago, R. I. & stock, there was no presumption of negli- P. R. Co. 132 Mo. App. 697, 112 S. W. 1002. gence arising from the death of an animal. Proof of twenty-four hours' delay supSt. Louis & S. F. R. Co. v. Wells, 81 Ark. ported the inference of negligence. 469, 99 S. W. 534.

And where the owner of live stock conAnd where live stock was in the care of tracted to take care of them, it was held the shipper, it was held that the rule as that the burden of proof as to negligence to the burden of proof being upon the car of the carrier was upon the shipper. Clark rier did not apply. Atlantic Coast Line R. v. St. Louis, K. C. & N. R. Co. 64 Mo. 440. Co. v. Dexter, 50 Fla. 180, 111 Am. St. Rep. He claimed that the cars were started 116, 39 So, 634.

before he could secure the doors of the cars It was said that Fla. Laws 1891, chap. containing his hogs. 4071, providing that a railroad company And the burden of proof as to the car. shall be liable for any damage done to rier's negligence was held to be on the stock or other property by the running of plaintiff where the shipper, with a lantern the locomotive or cars or other machinery, in the car with his stock, was found burned or for damages done by any person in the to death. Nunnelee v. St. Louis, I. M. & service of the company, unless the company S. R. Co. 145 Mo. App. 17, 129 S. W. 762. shall make it appear that its agents have The bill of lading was not noticed. exercised care and diligence, the presump- In Lupe v. Atlantic & P. R. Co. 3 Mo. tion in all cases being against the company, App. 77, where the live-stock contract prodid not apply, until it was shown that the vided that the shipper should assume the injury was caused by the running of the risk and care of stock, the court followed locomotives or cars or other machinery of the rule laid down in Ketchum v. American the defendant.

Merchants' Union Exp. Co. 52 Mo. 395, putThe owners of live stock, who agreed to ting the burden of proof as to negligence take care of the same on the cars, were on the carrier. held bound to aver and prove that a loss These cases were overruled in Witting v. was not attributable to a failure to perform St. Louis & S. F. R. Co. 101 Mo. 631, 10 their part of the contract, or to negligence L.R.A. 602, 20 Am. St. Rep. 636, 14 S. W. in performing the acts which they expressly '743.

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were destroyed, your verdict must be for, Upon the whole case, we are of the opinion the defendant."

that, notwithstanding that the case We are of the opinion that the instruc- tried and submitted upon erroneous theories tions given fairly covered the one requested, in some respects, yet the defendant was especially in view of the special interroga- liable as a matter of law, under the proofs, tory and the verdict thereon. We find no for the reasonable value of the horses at reversible error upon the issue of contribu- the time of their destruction, unless the tory negligence, in which connection further- same was caused or contributed to by the more, it must be remembered that the negligence of the plaintiff's agent, and upon record affirmatively shows that most of the this issue it must be held, so far as can be evidence relative to the cause of the fire ascertained from the record, that the jury and responsibility therefor has been omit- properly found in favor of the plaintiff. ted.

Order affirmed. 5. Some other errors are assigned, but we find nothing requiring further comment. Bunn, J., took no part.

A car contained horses and household And where the shipper accompanied the goods. The bill of lading authorized the stock, it was held that the burden was shipper to accompany the stock. He was upon him of showing that the damage did left at a station, and the car was burned not result through any fault of his own in subsequently. It was held that, to entitle loading or caring for the stock. And as a the plaintiff to recover, he should establish general rule he should also show such a by a preponderance of evidence that the fire state of facts as made out a prima facie was not occasioned by any act of negligence case of negligence on the part of defendant. on his part. Faust v. Chicago & N. W. R. Colsch v: Chicago, M. & St. P. R. Co. 149 Co. 104 Iowa, 241, 63 Am. St. Rep. 454, 73 Iowa, 176, 34 L.R.A. (N.S.) 1013, 127 N. W. N. W. 623.

198, Ann. Cas. 1912C, 915. The court said And when the shipper of stock agreed to that "confusion has sometimes resulted care for same on train, it was held that the through a failure to consider the fact that burden of proof as to showing that the the owner was not in personal charge of the injury was not caused by the shipper's neg- goods." ligence was upon the shipper, and, if oc- A shipper who accompanied stock under casioned by failure to do what he had his contract to feed and care for the same undertaken, then that such failure resulted was held required to prove affirmatively from an omission on the part of the com- that injury during transportation was not pany to perform some duty devolving on it. caused by any act or negligence of the Grieve v. Illinois C. R. Co. 104 Iowa, 659, shipper, but from negligence of the carrier. 74 N. W. 192.

Mosteller v. Iowa C. R. Co. 153 Iowa, 390, Stock was delayed while waiting to be 133 N. W. 748. transferred to the fair grounds, and one of And where the owner of live stock agreed the horses died. The shipper agreed to ac- to take care of the same, and accompanied company the horses and to feed and take the stock, it was held that the burden of care of them. It was held that, conceding proof was upon him to establish negligence the rule to be that the burden of proof was on the part of the carrier where the stock on the plaintiff to show that the negligent was injured. St. Louis, K. C. & N. R. Co. delay on the part of the carrier and injury v. Piper, 13 Kan. 510. therefrom, there was a sufficient evidence to And, where the owner contracted to load take the case to the jury. McMillan v. Chi and unload his stock and take charge of the cago, R. I. & P. R. Co. 147 Iowa, 596, 124 same, and did do so, it was held that the N. W. 1069.

burden of proof, where the company was And when the shipper accompanied the charged with negligence for injury to the shipment of stock and assumed to perform stock, was upon the owner. Louisville, C. the duties undertaken by the contract, the & L. R. Co. v. Hedger, 9 Bush, 645, 15 Am. burden of proof was held to be upon him, Rep. 740. This was on the ground that the in the first instance, to show that the loss party who has the care of the property is did not occur through any fault on his part. presumed to know how the injury occurred. Winn v. American Exp. Co. 149 Iowa, 259, The burden of proof was held to be on 128 N. W. 663. The court said: “This the owner of live stock, to show negligence burden is laid upon the plaintiff, not be on the part of the carrier, where he had cause he contracted to perform such duties, contracted to accompany and take care of but because he actually undertook to per- the same and did go with it, and the stock form them as a matter of fact."

was injured. Cincinnati, N. 0. & T. P. R. And where shippers were furnished free Co. v. Grover, 11 Ky. L. Rep. 236. But the transportation, and agreed to feed, water, mere fact that he was on the same train and care for the stock, and did accompany with the stock was not sufficient to show the stock, it was held that the burden of that he was in care of the stock, although showing freedom from

was not cast the cor act, if read to the jury, might on the carrier. McManus v. Chicago G. W. have authorized the presumption. R. Co. 138 Iowa, 150, 128 Am. St. Rep. 180, And the burden of proof was held to be 115 N. W. 919.

upon the owner to establish negligence,

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