And where the bill of lading exempted for loss by fire, and freight was burned, it was held that the burden was on the shipper to show negligence of the carrier. Little Rock, M. R. & T. R. Co. v. Harper, 44 Ark. 208; Little Rock, M. R. & T. R. Co. v. Corcoran, 40 Ark. 375; Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 523; St. Louis, I. M. & S. R. Co. v. Bone, 52 Ark. 26, 11 S. W. 958.

And the burden of proof was held to be on the plaintiff to show negligence where loss by fire was exempted in the bill of lading. Insurance Co. of N. A. v. Lake Erie & W. R. Co. 152 Ind. 333, 53 N. E. 382. The court said: "Neither is any serious danger to be apprehended from the imposition of unfair and unjust terms upon the shipper by the carrier. The form and conditions of the contracts of the carrier are in most cases subject to legislative control, and it is to be presumed that, whenever it becomes necessary to protect the people of the state from imposition, the legislative remedy will be applied."

And where the bill of lading exempted from liability for fire, it was held that the burden of proving negligence causing such loss was on the shipper. The Emily v. Carney, 5 Kan. 645; Otis Co. v. Missouri P. R. Co. 112 Mo. 622, 20 S. W. 676; Indianapolis, D. & W. R. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. The court said in the latter case: "We cannot agree with counsel that the mere fact that the goods were destroyed by fire while in the appellant's possession was conclusive or even presumptive proof of negligence."

And, where an express receipt exempted the carrier from loss by fire, it was held that the burden of proof as to negligence of the carrier was on the shipper. Smith v. American Exp. Co. 108 Mich. 572, 66 N. W. 479.

In Levering v. Union Transp. & Ins. Co. 42 Mo. 88, 97 Am. Dec. 320, where cotton was burned, it was held that it devolved upon the carrier to show, notwithstanding the exception exempting it from loss by

If the circumstances surrounding the ex

any fault, want of care, or negligence on its part or the part of its agents or employees. This case was 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.

And where the bill of lading exempted from damage from fire and flood, it was held that the burden of proof as to the carrier's negligence was upon the plaintiff. Johnson v. West Jersey & S. R. Co. 78 N. J. L. 529, 138 Am. St. Rep. 625, 74 Atl. 496, 20 Ann. Cas. 228. It was held that mere nondelivery and proof of fire did not establish negligence. Rags were burned in transit.

In Lamb v. Camden & A. R. & Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327, reversing 2 Daly, 454, a bill of lading exempted for damage by fire. It was held that to entitle the plaintiff to recover for such a cause he was bound to prove that the fire which consumed the cotton resulted from the negligence of the defendant. Allen and Peckham, JJ., dissented. The latter held that plaintiff proved a prima facie case of negligence in defendant's failure to deliver the cotton. The proof by defendant that the goods were destroyed by fire, and the exemption clause, did not make a prima facie defense. A presumption of negligence is shown by proof of fire. He said: "This precise question as to the burden of showing the exercise or the absence of ordinary care, where goods are consumed by a fire occurring upon the carrier's own premises, is not inconsistent with the position that upon the plaintiff ultimately rests the onus of establishing the negligence." The knowledge is exclusively with the carrier. An ordinary fire does not occur without negligence as a general rule.

In J. Russell Mfg. Co. v. New Haven S. B. Co. 50 N. Y. 121, that case was distinguished.

In Koenigsheim v. Hamburg & A. Packet Co. 17 N. Y. Week. Dig. 405, it was said: "The case of Lamb v. Camden & A. R. & Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327, does not hold that the precise nature of

question of whether it was fair, just, and reasonable, and for the purpose of securing a due proportion between the amount of the carrier's liability and the compensation to be received for the carriage, then the court was plainly in error in refusing to submit such question to the jury; but if, on the other hand, it appears that under the facts such was not the case, that the contract was not fairly entered into with freedom of choice, that the valuation was arbitrary and plainly for the purpose of limiting the carrier's liability, and all this to such extent that if the question had been submitted, and the jury had found to the the negligence must be shown, and it is clearly intimated that simply proving the fire in that case would have called upon the defendant for explanation."

A bill of lading contained a general exemption from liability for loss by fire. Loss having occurred from this cause, it was held incumbent on the plaintiff to show that the fire was the result of the defendant's negligence, or that the loss resulted from some breach of the duty. Whitworth v. Erie R. Co. 87 N. Y. 413. The freight house containing the cotton was burned. It was held the occurrence of a fire would not alone justify the inference of negligence. And where an express receipt exempted for liability from fire, it was held that the plaintiff was required to prove that a fire destroying his goods was due to negligence of the carrier. Proof of a fire did not give rise to the presumption of negligence. It was further held that, before the express company could be held liable for more than $50 value, the plaintiff was obligated to prove some affirmative act of wrongdoing on the part of the carrier. Rowan v. Wells, F. & Co. 80 App. Div. 31, 80 N. Y. Supp. 226. The value was asked, but not given. And where a bill of lading exempted liability for loss by fire, a dog in a crate escaped and was replaced in the crate in the freight house, which was burned shortly afterwards, from, it was supposed, the dog upsetting a kerosene lamp. It was held that the burden was on plaintiff, whose freight was burned, to establish negligence of the carrier. Van Akin v. Erie R. Co. 92 App. Div. 23, 87 N. Y. Supp. 871.

c. Live stock.

1. Generally.

The general rule is that where the live stock is in the charge of the carrier, the shipper has the burden of proving negligence of the carrier, if the shipping contract exempts the carrier from special liability.

Hogs were injured and some escaped. The contract provided exemption except for negligence. Proof by the shipper that there was a wreck and delay was held sufficient to shift the burden of proof to the carrier.

contrary, the verdict could not have been sustained, then the defendant cannot now complain of the failure to submit. This is the general test of the propriety of refusing to submit questions of fact to the jury, and when it is applied to the facts of this case there can be, we think, but one result, and that is that, under the rule announced in Ostroot v. Northern P. R. Co. supra, the action of the trial court must be sustained. It is clear from the case last cited that this court is not prepared to sustain all limited liability contracts regardless of the circumstances under which they were entered into (see also O'Connor v. Great Northern R. McFall v. Wabash R. Co. 117 Mo. App. 477, 94 S. W. 570.

A contract for shipping hogs restricted the carrier's liability to that resulting from negligence. It was held that the burden devolved on plaintiff to show that the unusual delays were the result of negligence. Bushnell v. Wabash R. Co. 118 Mo. App. 618, 94 S. W. 1001. The court said: "Circumstances that even slightly tend to show a negligent origin of the unusual delay will support an inference of negligence."

And where cattle were delayed unreasonably and one was injured, crippled, and bruised, it was held that the burden of proof was on plaintiff to show the carrier's negligence, but not necessarily to show that the injury was caused by human agency. Libby v. St. Louis, I. M. & S. R. Co. 137 Mo. App. 276, 117 S. W. 659.

The special contract was not pleaded and was improperly used before the trial court. A bill of lading for a horse exempted liability for injury except such as should arise from gross negligence. The horse was badly injured, and in a suit for negligence only the plaintiff was required to prove the allegations. But it was held sufficient where plaintiff alleged that the horse was injured by the careless shifting and colliding of cars, and the evidence showed that the horse's back was broken by suddenly stopping the cars. There was no objection to this evidence. Newman v. Pennsylvania R. Co. 33 App. Div. 171, 53 N. Y. Supp. 456, 5 Am. Neg Rep. 73.

Hogs were taken under a contract providing that the carrier was not an insurer; that the carrier would not be liable for injuries caused to the animals by themselves, nor from loading or unloading, nor for injury from delay. It was held that the burden was on the shipper to prove that the injury to the hogs was from the failure to "wet them down." Peterson v. Chicago, M. & St. P. R. Co. 19 S. D. 122, 102 N. W. 595.

And where a carrier restricted the liability for live stock by special contract, the burden of establishing negligence was held to be on the shipper. Kansas P. R. Co. v. Reynolds, 8 Kan. 623.

A clause in a live-stock contract required a claim for damages to be made within a

Co. 118 Minn. 223, 228, 136 N. W. 743; O'Malley v. Great Northern R. Co. 86 Minn. 380, 382, 90 N. W. 974); and yet, if this contract is to be sustained, it is difficult to conceive of any state of facts under which such a contract would not have to be upheld, except in case of fraud or duress. Our conclusion is that the trial court did not err in holding that the special contract did not limit the plaintiff's right of recovery in the matter of the value of the horses.

4. The defendant complains of the court's instructions concerning contributory negligence, and of its failure to instruct as certain time. It was said: "But the clause in question is not one exempting the carrier from its common-law liability, or limiting that liability, but one imposing a condition. Hence, when the shipper seeks a recovery he must show compliance with the condition upon which recovery may be had." Kalina v. Únion P. R. Co. 69 Kan. 172, 76 Pac. 438.

A horse was injured by reason of being carried on an open car. The bill of lading exonerated the carrier from all damages caused to stock, and the shipper assumed all risk. It was held that this would not excuse negligence, but as to that the burden would be upon the shipper. That if the shipper required a box car, and it was not given, this would be negligence and shift the burden of proof to the carrier to show that the loss was without its fault. Sager v. Portsmouth, S. & P. & E. R. Co. 31 Me. 228, 50 Am. Dec. 659.

And where the shipper of live stock agreed to release the carrier. from claim for loss, except for gross negligence of the car rier, it was held that the burden of proof was on the shipper to show negligence of the carrier. Bankard v. Baltimore & O. R. Co. 34 Md. 197, 6 Am. Rep. 321. Detached or broken-loose cars, colliding with the cattle cars, breaking of a wheel, collisions, and delays were held of themselves no proof of negligence.

Two head of cattle were missing at delivery. The shiper assumed the risk except for gross negligence. It was held that the burden was on the plaintiff to show that the negligence of the carrier caused the loss. George v. Chicago, R. I. & P. R. Co. 57 Mo. App. 358.

And, where cattle were carried under a contract by which the carrier was to be liable only in case of negligence, it was held that the burden of proving negligence was on the plaintiff. Harris v. Midland R. Co. 25 Week. Rep. 63. In this case one of the cows was killed, and its spine was injured and shoulder broken.

Poultry was shipped by contract exempting the carrier from all damages not caused by wilful misconduct. The poultry was injured by delays. It was held that the burden was on plaintiff to show evidence

The court,

requested by the defendant. however, did charge, in effect, that the defendant would not be liable if Matson contributed to the loss by negligence in look. ing after the horses or in caring for them after they were loaded. Furthermore, a special interrogatory was submitted to the jury upon this question, and the jury returned a special verdict negativing negligence in such regards.

From the defendant's brief we gather that it was claimed on the trial that the evidence warranted a finding that Matson allowed a drunken friend to go into the car for the purpose of stealing a ride, and that of wilful misconduct. Graham v. Belfast & N. C. R. Co. [1901] 2 I. R. 13.

The warranty that a ship was fit at the beginning of a voyage to safely carry the cargo received by her was held not implied if the parties contract otherwise. The burden of proof was held to be on the shipper to show negligence. The Tjomo, 115 Fed. 919. In this case the bill of lading accepted the fittings and fastenings for cattle as satisfactory, but some cattle were lost. The evidence showed an unprecedented storm. This put the burden on libellant to prove negligence in the construction of the fittings and stowage of the cattle.

A bill of lading assumed on the part of the shipper of live stock all risks of injury or loss to his stock by reason of defects in the cars.

It was held that the burden of

proof was on the carrier not only to show that a limited contract was made, but also that the loss in question arose from a cause excepted in the contract. St. Louis, I. M. & S. R. Co. v. Lesser, 46 Ark. 236. established with reasonable certainty, and not rest upon conjecture or possibility." A horse was injured by nails in the car.

The court said: "And this fact must be

And where the owner of live stock was burden was on the carrier to show that it not with the same, it was held that the was excused from liability by reason of the natural propensity of the stock to injure

themselves or each other. Wabash R. Co. v. Priddy, 179 Ind. 483, 101 N. E. 724.

Quite a few Iowa cases place burden on carrier to disprove negligence, but in those cases there does not appear to have been exemptions in the bill of lading.

Live stock were injured and killed in transportation. The defendant claimed that the contract exempted from all liability except for collision or derailment. It was held that such exemption was void; that the burden was on the carrier, which received property for transportation, to show the circumstances which excused or relieved it from liability. McCoy v. Keokuk & D. M. R. Co. 44 Iowa, 424.

2. Where shipper is in charge. Some cases put stress upon the fact that the shipper agreed to and did take charge, and that the reason of the rule stated by

So, where the contract to carry live stock limited the carrier's liability, and the shipper remained in charge, it was held that the burden of proof as to negligence of the carrier was on the shipper. St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397, 7 Am. St. Rep. 104, 8 S. W. 134.

The bill of lading provided that the shipper should load the cars, unload, feed, water, and attend to them, see that they were fastened. A tramp was taken out of the car while in transit, and a fine jack died.

A contract to carry live stock provided that the shipper should accompany the same, and that the carrier should not be responsible for care of the stock, but only liable for actual negligence of the employees. It was held that where the shipper accompanied the car and had charge of the stock, there was no presumption of negligence arising from the death of an animal. St. Louis & S. F. R. Co. v. Wells, 81 Ark. 469, 99 S. W. 534.

And where live stock was in the care of the shipper, it was held that the rule as to the burden of proof being upon the carrier did not apply. Atlantic Coast Line R. Co. v. Dexter, 50 Fla. 180, 111 Am. St. Rep. 116, 39 So. 634.

It was said that Fla. Laws 1891, chap. 4071, providing that a railroad company shall be liable for any damage done to stock or other property by the running of the locomotive or cars or other machinery, or for damages done by any person in the service of the company, unless the company shall make it appear that its agents have exercised care and diligence, the presumption in all cases being against the company, did not apply, until it was shown that the injury was caused by the running of the locomotives or cars or other machinery of the defendant.

The owners of live stock, who agreed to take care of the same on the cars, were held bound to aver and prove that a loss was not attributable to a failure to perform their part of the contract, or to negligence in performing the acts which they expressly

The defendant also assigns error upon the failure to give the following instruction requested by it: "You are instructed that, according to the testimony on behalf of the plaintiff, Matson was to load the horses and go with them to Stillwater. If you find that it was the understanding and agreement of the plaintiff and defendant that Matson should care for the horses while in defendant's possession, and you should further find that Matson negligently failed to properly care for the horses, and that as a result of Matson's negligence the horses undertook to perform. Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 17 L.R.A. 339, 32 Am. St. Rep. 239, 31 N. E. 781.

The shipper agreed to load a jack, and that the carrier should not be liable for any damage from improper loading. It was held that it was incumbent upon the shipper to show that the freight was injured by the carrier's negligence. Crow v. Chicago & A. R. Co. 57 Mo. App. 135.

And where the owner agreed to and did take care of live stock, it was held that the burden of proving negligence was on the plaintiff. McBeath v. Wabash, St. L. & P. R. Co. 20 Mo. App. 445.

A contract provided that live stock was not to be transported in any specified time, that the carrier was to be exempt from liability for damage not the direct result of negligence, that the shipper should take charge of and assume all risk. It was held that the burden of proof was on the plaintiff to show unreasonable delay and injury caused thereby. Gilbert v. Chicago, R. I. & P. R. Co. 132 Mo. App. 697, 112 S. W. 1002.

Proof of twenty-four hours' delay supported the inference of negligence.

And where the owner of live stock contracted to take care of them, it was held that the burden of proof as to negligence of the carrier was upon the shipper. Clark v. St. Louis, K. C. & N. R. Co. 64 Mo. 440. He claimed that the cars were started before he could secure the doors of the cars containing his hogs.

And the burden of proof as to the carrier's negligence was held to be on the plaintiff where the shipper, with a lantern in the car with his stock, was found burned to death. Nunnelee v. St. Louis, I. M. & S. R. Co. 145 Mo. App. 17, 129 S. W. 762. The bill of lading was not noticed.

In Lupe v. Atlantic & P. R. Co. 3 Mo. App. 77, where the live-stock contract provided that the shipper should assume the risk and care of stock, the court followed the rule laid down in Ketchum v. American Merchants' Union Exp. Co. 52 Mo. 395, putting the burden of proof as to negligence on the carrier.

These cases 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.

We are of the opinion that the instructions given fairly covered the one requested, especially in view of the special interrogatory and the verdict thereon. We find no reversible error upon the issue of contributory negligence, in which connection furthermore, it must be remembered that the record affirmatively shows that most of the evidence relative to the cause of the fire and responsibility therefor has been omitted.

5. Some other errors are assigned, but we find nothing requiring further comment.

A car contained horses and household goods. The bill of lading authorized the shipper to accompany the stock. He was left at a station, and the car was burned subsequently. It was held that, to entitle the plaintiff to recover, he should establish by a preponderance of evidence that the fire was not occasioned by any act of negligence on his part. Faust v. Chicago & N. W. R. Co. 104 Iowa, 241, 63 Am. St. Rep. 454, 73 N. W. 623.

And when the shipper of stock agreed to care for same on train, it was held that the burden of proof as to showing that the injury was not caused by the shipper's negligence was upon the shipper, and, if occasioned by failure to do what he had undertaken, then that such failure resulted from an omission on the part of the company to perform some duty devolving on it. Grieve v. Illinois C. R. Co. 104 Iowa, 659, 74 N. W. 192.

Stock was delayed while waiting to be transferred to the fair grounds, and one of the horses died. The shipper agreed to accompany the horses and to feed and take care of them. It was held that, conceding the rule to be that the burden of proof was on the plaintiff to show that the negligent delay on the part of the carrier and injury therefrom, there was a sufficient evidence to take the case to the jury. McMillan v. Chicago, R. I. & P. R. Co. 147 Iowa, 596, 124 N. W. 1069.

And when the shipper accompanied the shipment of stock and assumed to perform the duties undertaken by the contract, the burden of proof was held to be upon him, in the first instance, to show that the loss did not occur through any fault on his part. Winn v. American Exp. Co. 149 Iowa, 259, 128 N. W. 663. The court said: "This burden is laid upon the plaintiff, not because he contracted to perform such duties, but because he actually undertook to perform them as a matter of fact."

And where shippers were furnished free transportation, and agreed to feed, water, and care for the stock, and did accompany the stock, it was held that the burden of showing freedom from liability was not cast on the carrier. McManus v. Chicago G. W. R. Co. 138 Iowa, 150, 128 Am. St. Rep. 180, 115 N. W. 919.

!

that, notwithstanding that the case was tried and submitted upon erroneous theories in some respects, yet the defendant was liable as a matter of law, under the proofs, for the reasonable value of the horses at the time of their destruction, unless the same was caused or contributed to by the negligence of the plaintiff's agent, and upon this issue it must be held, so far as can be ascertained from the record, that the jury properly found in favor of the plaintiff. Order affirmed.

Bunn, J., took no part.

And where the shipper accompanied the stock, it was held that the burden was upon him of showing that the damage did not result through any fault of his own in loading or caring for the stock. And as a general rule he should also show such a state of facts as made out a prima facie case of negligence on the part of defendant. Colsch v. Chicago, M. & St. P. R. Co. 149 Iowa, 176, 34 L.R.A. (N.S.) 1013,. 127 N. W. 198, Ann. Cas. 1912C, 915. The court said that "confusion has sometimes resulted through a failure to consider the fact that the owner was not in personal charge of the goods."

A shipper who accompanied stock under his contract to feed and care for the same was held required to prove affirmatively that injury during transportation was not caused by any act or negligence of the shipper, but from negligence of the carrier. Mosteller v. Iowa C. R. Co. 153 Iowa, 390, 133 N. W. 748.

And where the owner of live stock agreed to take care of the same, and accompanied the stock, it was held that the burden of proof was upon him to establish negligence on the part of the carrier where the stock was injured. St. Louis, K. C. & N. R. Co. v. Piper, 13 Kan. 510.

And, where the owner contracted to load and unload his stock and take charge of the same, and did do so, it was held that the burden of proof, where the company was charged with negligence for injury to the stock, was upon the owner. Louisville, C. & L. R. Co. v. Hedger, 9 Bush, 645, 15 Am. Rep. 740. This was on the ground that the party who has the care of the property is presumed to know how the injury occurred.

The burden of proof was held to be on the owner of live stock, to show negligence on the part of the carrier, where he had contracted to accompany and take care of the same and did go with it, and the stock was injured. Cincinnati, N. O. & T. P. R. Co. v. Grover, 11 Ky. L. Rep. 236. But the mere fact that he was on the same train with the stock was not sufficient to show that he was in care of the stock, although the contract, if read to the jury, might have authorized the presumption.

And the burden of proof was held to be upon the owner to establish negligence,