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where he had agreed to accompany the live , would be responsible for negligence or want stock, but failed to go, and did not notify of skill in lading, stowage, or delivery, yet the carrier. Louisville & N. R. Co. v. Mar- such negligence would have to be shown by tin, 8 Ky. L. Rep. 432.
the party alleging it. The Delhi, 4 Ben. And where the owner of live stock agreed 345, Fed. Cas. No. 3,770. Glass was unto take care of the same, it was held that loaded by laying boxes on the flat side, but the burden of proof to show negligence caus- the libellants failed to show damage from ing injury was upon him. Louisville, C. & negligence. L. R. Co. v. Hedger, supra.
A horse was Glass was shipped, “Owners risk breakinjured by a defective chute in unloading. age.” It was held that where the glass The railroad was held liable.
was broken the burden of proving negliIn Louisville & N. R. Co. v. Wathen, 22 gence of the carrier was on the owner. It Ky. L. Rep. 82, 49 S. W. 185, which held was further held that the same kind of evithat the burden was on the owner of live dence would apply in this case as in any stock to show negligence on the part of the other. Hecht v. Grand Trunk R. Co. 132 carrier, the owner sent a man with the Wis. 605, 113 N. W. 68. stock. The case does not show the carrier's A marble fountain was shipped. The bill contract.
of lading provided, “Marbles at owner's risk And, where the owner of live stock agreed of breakage. It was held that the burden to care for the same, it was held that the of proof as to negligence of the carrier was burden of proof was upon him to estab- on the shipper. Witting v. St. Louis & S. lish negligence of the carrier where a fine F. R. Co. 101 Mo. 631, 10 L.R.A. 602, 20 mare was injured. Louisville & N. R. Co. Am. St. Rep. 636, 14 S. W. 743. The court v. Harned, 23 Ky. L. Rep. 1651, 66 S. W. said: “The party who founds his cause of 25; Cincinnati, N. 0. & T. P. R. Co. v. action upon negligence must be prepared to Greening, 30 Ky. L. Rep. 1180, 100 S. W. establish the assertion by proof. If the 825; Louisville, c. & L. R. Co. v. Hedger, cause of action stands on negligence of the supra.
carrier, and not on the common-law liabil. And, where the injury to goods was from ity of the carrier as an insurer, the burden a cause excepted in the bill of lading, it of proof is upon the plaintiff from the bewas held that the burden was on the shipper ginning to the end of the case.” to show that the loss was caused by the And where the libellant sued for "break. negligence of the carrier. Morse v. Cana- age,” which was excepted in the bill of laddian P. R. Co. 97 Me. 77, 53 Atl. 874. In ing, it was held that the nature of the inthis case the shipper of live stock assumed jury indicated for itself that it belonged all risk and agreed to care for stock. Some within the specified exemption from liabil. horses were killed by being tramped upon.ity, and the burden was on the libellant to There was no evidence that the stock was establish negligence on the part of the carthrown down by jar in starting or by the rier. The Henry B. Hyde, 32 C. C. A. 534, motion of the cars.
61 U. S. App. 147, 90 Fed. 114, affirming 82 And where the live stock was shipped Fed. 681. and the owner agreed to take care of them, The burden of showing that injury to and his man did accompany the same, it a cargo was caused by improper stowage was held that the burden of proof was on was held to be on the owner of the cargo, the shipper to show negligence of the car where the bill of lading exempted for breakrier. Bartlett v. Oregon R. & Nav. Co. 57 age and leakage and perils of the sea. CroWash. 16, 135 Am. St. Rep. 959, 106 Pac. well v. Union Oil Co. 46 C. C. A. 296, 107 487.
A machine was shipped at owner's risk. d. Breakage and leakage.
When delivered the legs were broken. It
was held that the onus was on the plaintiff The shipper was held required to show to prove the negligence of the carrier, and negligence in the following cases, where the “though such negligence will not be prebill of lading exempted for damage caused sumed, it may be inferred from circumby breakage and leakage:
stances legitimately appearing in the case." Where the bill of lading exempted from Heck v. Missouri P. R. Co. 51 Mo. App. breakage, it was held that the burden of 532. proof was on the libellant to establish that! A consignent of firecrackers from Hong damage from this cause was occasioned by Kong showed breakage of boxes on delivery. the negligence of the carrier. The Mora- The bill of lading exempted the vessel for vian, 2 Haskell, 157, Fed. Cas. No. 9,789. "insufficient packing, reasonable wear and
A bill of lading exempted a ship from tear of packages, leakage, breakage." There liability for breakage of glass. It was held was proof on the part of the ship of good that the burden of proof as to negligence stowage, proper loading and discharge, carewas on the libellants. The Pereire, 8 Ben. ful handling, and some rough passage. In 301, Fed. Cas. No. 10,979. In this case it the absence of affirmative proof of negliwas not known with certainty that any gence on the part of the carrier, the shipper glass was broken until the cases were cart- could not recover. The Lennox, 90 Fed. ed to and opened in libellant's warehouse.
308. Under a bill of lading that the vessel Packages containing firecrackers were de would not be accountable for leakage, break: livered broken. The bill of lading exemptage, or rust, it was held that the vessel'ed from liability for breakage or the in
sufficiency of the packages. It was held others partly. The ship libeled the wine that, upon proof of breakage, the steamer for freight charges. No evidence was ofrelying on said proviso for exemption had fered by the claimants, and there was no the burden of showing that the damage was other evidence of the negligence of the vesdue to insufficient protection. Doherr v. sel than the condition of the casks upon Houston, 64 C. C. A. 102, 128 Fed. 594, her arrival. The casks were of inferior affirming 123 Fed. 334. The bill of lading quality, badly coopered and shaky. It was was indorsed “Packages, firecrackers frail.” held that the burden of proving that the It was held that there was negligent stow. injury to the casks was caused by the negage, and that the respondent failed to sus-ligence of the ship was cast upon the claintain the burden of proof. Distinguishing ants by the proof of the inferior quality the case of The Lennox, supra, it was said : of the casks. 630 Casks of Sherry, 14 "The case at bar, however, differs from The Blatchf. 517, Fed. Cas. No. 12,918. Lennox in some of its facts, and in having And the burden of proof was held to be said special written contract indorsed on on the shipper to show negligence where loss the bill of lading, by which the libellant of freight was from leakage and breakage, agreed that, as the packages were frail, the which were excepted in the bill of lading. steamer should not be accountable for The Jefferson, 31 Fed. 489. The evidence breakage, provided they were insufficiently of the carrier was insufficient to show that protected. Upon proof of breakage, the the damage to the barrels was caused by steamer, relying on said proviso for exemp- perils of the sea. The barrels were crushed tion from liability, has the burden of proof by rolling over them other barrels of heavy to establish that the damage was due to in- freight. sufficient protection."
A bill of lading exempted the carrier A violin was shipped by express in a from loss by leakage. A cask of wine was crate. The receipt provided exemption for empty on delivery to the consignee. It breakage unless from gross negligence. The was held that the burden was on the libel. case was intact, but a slat was missing, and lant to show that the leakage might have one was loose, and the violin was broken. been avoided by reasonable skill on the It was held that the plaintiff complied with part of the carrier, where the leakage was the rule as to burden of proof by showing caused by a plug in the cask becoming the condition of the violin on its arrival. loose. The Olbers, 3 Ben. 148, Fed. Cas. A prima facie case of gross negligence was No. 10,477. established. Campe v. Weir, 28 Misc. 243, A bill of lading exempted the vessel from 58_N. Y. Supp. 1082.
average leakage. Some casks of wine when In The Henry B. Hyde, 32 C. C. A. 534, 61 delivered were empty. It was held that U. S. App. 147, 90 Fed. 114, where the negligence on the part of the vessel should cause of loss was alleged by the libellant be aflirmatively shown by the owners of to be “breakage," it was said: “In this the wine. Vaughan v. 630 Casks, 7 Ben. respect the case differs from some of those 506, Fed. Cas. No. 16,900. The casks might cases which are cited by the appellants, have been empty when shipped. such as cases where the carrier had stipu- And where the bill of lading provided, lated against loss by the perils of the sea. I "Ship not responsible for rust, leakage, or The Giava, 56 Fed. 243; The Warren Ad- shrinkage,” it was held that the burden of ams, 20 C. C. A. 486, 38 U. S. App. 356, 74 proof was on the shipper to show that exFed. 413. In such cases the duty rests up- cessive leakage of oil was caused by the on the carrier to show that the damage re- negligence of the carrier. The Invincible, 1 sulted from the perils of the sea. In the Low. Dec. 225, Fed. Cas. No. 7,055. The present case the stipulation was explicit. court said: "It is not enough to show The nature of the injury indicated for it. that it exceeds the average leakage, beself that it belonged within the specified cause it is not that alone which is excepted, exemption from liability.”
but any leakage unless caused, in fact, by . The burden of proof was held to be upon negligence on the part of the ship.” the carrier to show the cause of fracture A bill of lading exempted from liability of an iron casting. The carrier claimed from “breakage, leakage, or damage.” The that the owner assumed the risk of having goods were damaged by oil. Over the place the castings turned when being unloaded, where the goods were stored were two en. and that this breakage was not caused at gines lubricated by oil. It was held that that time. If not caused then, the carrier the burden of proof was on the plaintiff should have shown when it was injured. to show negligence of the carrier. Czech v. Hudson River Lighterage Co. v. Wheeler General Steam Nav. Co. L. R. 3 C. P. 14. Condenser & Engineering Co. 93 Fed. 374. Bovill, Ch. J., said: “If the goods are dam
Chlorid shipped under a bill of lading aged, and no reasonable explanation of the exempting loss from “leakage,” was partly damage can be given except the negligence lost by leakage. It was held that the bur- of the defendants, a jury are justified in den was on the libellant to show negligence finding that such negligence is proved.” on the part of the ship. The Barracouta, What he meant was probably better stated 39 Fed. 288.
by Byles, J.: “But it was shown that the A bill of lading exempted the ship from goods were injured by oil, and that they liability for leakage and breakage not aris- i were in close proximity to engines, in luing from her own negligence. Some casks bricating which oil must have been used, of wine were empty on their arrival, and
and that there was no defect in
the engines, and no accident on the voyage. I brakeman, or what he was doing at the time
It certainly was strong prima facie of the accident. evidence.
And where goods were shipped at the In Vogel v. Grand Trunk R. Co. 10 Ont. owner's risk, and the vessel sunk, it was App. Rep. 162, Burton, J. A., said: “The held that the burden of proof as to the carcontract stipulates that the company shall rier's negligence was on the shipper. Moore not be liable for any damage that may oc- v. Evans, 14 Barb, 524. cur to goods arising from leakage or break- And the burden of proof was held to be age, and some other things not material to on the shipper, to show the carrier's neglithe present inquiry, and no doubt this gence, where wheels were shipped at the would exempt them from damage arising owner's risk. Sejalo v. Woolverton, 31 from those causes, the result of mere ac- Misc. 752, 64 N. Y. Supp. 48. cident, where no blame is imputable to The shipper was held to have the burden them, but not from responsibility for their of proof of negligence where the loss ocown negligence and want of care. Under curred by reason of a cause exempted in the such a contract the onus would be upon the bill of lading. Flynn v. St. Louis & S. F. owners of the goods to show that the dam- R. Co. 43 Mo. App. 424. Furniture shipped age was attributable to the misconduct of at "owner's risk” was broken. The court the company or their servants."
said: “It is enough for the plaintiff to dis. Where a carrier was to be exempt from close circumstances sufficient to raise a fair liability for injury by reason of leakage, inference of negligence.” fermentation, and breakage, and grape juice had fermented, it was held that, in order to avail itself of the exemption, the carrier
f. Heat and cold. was called upon to show that it had performed the contract to ship on the 25th for damage to cargo by heat.” Where this
A bill of lading exempted from liability day of November, or in the first vessel thereafter, and was without fault. Heyl
was the cause it was held that the burden v. Inman S. S. Co. 14 Hun, 564. The jury
was on the libellant to show that the negliwere instructed to find whether there was ated in the damage to his goods. The New
gence or misconduct of the carrier co-opersufficient excuse for not sending the casks Orleans, 26 Fed. 44. forward on the 25th day of November or the 2d day of December, the defendant's New York excepted damages from heat and
A bill of lading for nuts from Para to steamers having sailed on both of those days; and they were further instructed that steam. Where it was shown that they were if the excuse was insufficient, the exemp-ner, that the most approved methods of ven.
stowed in compartments in the usual man. tion could not be claimed. And where a cask of wine was shipped removed when the weather would permit,
tilation were adopted, that the hatches were and was empty on arrival, and the cask was that tempestuous weather required closing not damaged, it was held that the carrier the hatches for the last three days, the was bound to prove that the loss occurred burden of proof to show negligence was held within a clause exempting from liability.
The Portuense, 35 The bill of lading exempted damage from to be on the libellant.
Fed. 670. stowage, straining, or other peril of the sea. It was held that proof of tempestuous voy tor were excepted in the bill of lading, it
And where defects in the ship’s refrigeraage, and of cargo well stowed and hatches secured, did not shift the burden of proof. was held that the burden of proof was on Arend v. Liverpool, N. Y. & P. S. S. Co. the shipper to show negligence. The South64 Barb. 118, affirmed without opinion in wark, 104 Fed. 103, affirmed in 48 C. C. A. 53 N. Y. 606.
123, 108 Fed. 880, which is reversed in 191 In Drew v. Red Line Transit Co. 3 Mo. U. S. 1, 48 L. ed. 65, 24 Sup. Ct. Rep. 1.
The court said: App. 495, the cases of Levering v. Union
"No doubt, the machinery Transp. & Ins. Co. 42 Mo. 88, 97 Am. Dec. / for some reason or reasons did not do it's 320, and Ketchum v. American Merchants; i work, and no doubt, also, its failure to reUnion Exp. Co. 52 Mo. 391, were followed. duce the temperature sufficiently was due
to the several breakdowns. . Unless In this case the contract provided no liability for breakage, and, glass being broken, negligence is proved, the cause or causes of it was held that the burden of proof as to the accidents are not important; for the absence of negligence was on the carrier. rier from liability for the consequences of
libellants' express contract relieved the carThese cases were overruled in Witting v. St. Louis & S. F. R. Co. 101 Mo. 631, 10 L.R.A. any breakdown, however caused.” 602, 20 Am. St. Rep. 636, 14 S. W. 743.
And where the shippers contracted to sup.
ply a refrigerator car for their use with e. Owner's risk.
ice, it was held that the carrier had a right
to assume, in the absence of notice to the Goods were shipped at owner's risk. The contrary, that they had furnished enough train separated and the engineer braked his ice to keep the car cool until a delivery to part. The collision derailed the car. The the consignee could be had. The carrier's burden of proof as to negligence was held to liability had to be predicated upon negli. be on plaintiff. French v. Buffalo, N. Y. & gence, and in the absence of evidence of the E. R. Co. 4 Keyes, 108. The plaintiff failed carrier's default, it would be assumed that to prove the exact position of the third' loss was caused by default of shipper. Chi. cago, I. & L. R. Co. v. Reyman, 166 Ind. | 48, 75 Am. Dec. 372, and Weed v. Panama 278, 76 N. E. 970.
R. Co. 17 N. Y. 362, 72 Am. Dec. 474. But Apples were shipped under a special con- in neither case was the burden of proof distract limiting the carrier's liability to dam cussed. The court evidently meant that age resulting from negligence, and the ap- where frost and delay have been estab. ples in a refrigerator car were injured. It lished, the burden is on the carrier to show was held that the burden of proof as to that these are within the exemptions, alnegligence was on the shipper. Hurst v. St. though the word "negligence” is used. Louis & S. F. R. Co. 117 Mo. App. 25, 94 S. W. 794.
g. Decay and rust. And the burden of proving negligence was The burden of proof was held to be on held to be on the shipper, where the loss oc- the libellant to show that deterioration of curred by reason of some peril excepted in a shipment of garlic from Naples might the contract. Heil v. St. Louis, I. M. & S. have been avoided by the exercise of skill R. Co. 16 Mo. App. 363. Vegetables were on the part of the carrier. The Hindouinjured by change in the temperature, which stan, 14 C. C. A. 650, 35 U. S. App. 173, 67 Was exempted in the contract.
Fed. 794. The bill of lading exempted for And where potatoes were frozen and the “deterioration of fresh vegetables," -—“decarrier claimed that the bill of lading ex. cay.” The libellant contended that the venempted for damage from frost, it was held tilation was defective. that the burden of proof as to negligence And the burden of proof was held to be was on the shipper, and the carrier was not on the libellants to show negligence of the required to prove that it was not negligent. carrier where dogskins were damaged by But the carrier in this case, having admitted the sweating of the cargo, which “sweating” there was a delay in delivery, was held to was exempted in the bill of lading. The have the burden of showing that that fault Flintshire, 69 Fed. 471. No evidence was was not negligence. Read v. St. Louis, K. introduced to show that the cargo should C. & N. R. Co. 60 Mo. 199, overruling Lever have been stowed differently, or that it was ing v. Union Transp. & Ins. Co. 42 Mo. 88, improperly dunnaged. 97 Am. Dec. 320.
Where the bill of lading exempted for In Drew v. Red Line Transit Co. 3 Mo. "rust,” and a shipment of sheet iron was App. 495, it was said that the case of Read badly rusted and wet with sea water, it v. St. Louis, K. C. & N. R. Co. supra, was was held that evidence of sweating or wet not called to the attention of the court from moisture in the air was not adequate when Kirby v. Adams Exp. Co. 2 Mo. App. to cover the loss, but might shift the bur369, was decided. In the Read Case the den of proof to the shipper to show that carrier adınitted the delay caused the loss the loss was not occasioned by that peril. by frost of the potatoes, and it was held The Svend, 1 Fed. 61. that, having set up an excuse, it should A cargo of beans was damaged on delivclear itself of negligence. It was true that ery. It was held that the burden was on the judge seemed to take it for granted the carrier to show that the damage was that a carrier could exonerate itself by con caused by a risk excepted in the bill of tract, and when it proved the loss to be lading: The ship claimed that the beans within the exemption, the burden would be were improperly cured, but there was no cast on the plaintiff; but that point was not evidence as to this and they apparently involved in this case.
were properly stowed. The carrier was held And where the bill of lading exempted liable although the cause of the damage was liability for dangers from weather, it was unknown. The Patria, 125 Fed. 425, af. held that the plaintiff had the burden of firmed in 68 C. C. A. 397, 132 Fed. 971. proof to show negligence of the carrier.
h. Perils of navigation. Thyll v. New York & L. B. R. Co. 92 App. Div. 513, 87 N. Y. Supp. 345, modifying 84 It is generally held that where the bill N. Y. Supp. 175. This was shown by the of lading exempts the carrier from liability retention of the goods after demand and ex- for loss caused by the perils of the sea, posing them to damp weather.
the carrier must show that there were perils A contract released liability for losses be sufficient to cause the loss. The burden yond the carrier's control, which it was then is on the plaintiff to show that want urged was the same thing as the act of God, of care on the part of the carrier was the and it was specifically urged that there was cause. But in some cases it is held that, a release for loss due to weather, heat, in order to bring the damage within the frost, wet, or decay, and that the evidence perils of navigation, the carrier should showed the loss was from heating or freez. prove that it used due care and diligence. . ing. There was nineteen days' delay, which See also subd. III. should have been only five, and the delay A cargo. of sugar consigned subject to was wholly unaccounted for. It was held the perils of the sea was damaged on arthat it was incumbent on the carrier to rival. It was held that the burden was on show that, if the loss was due to heat or the ship to show that the case came within freezing, it was no due to delay or negli- the exception in the bill of lading. If it gence in transportation. Pittsburgh, C. c.' was shown that the peril was adequate to & St. L. R. Co. v. Mitchell, 175 Ind. 196, produce this result, and that there were 91 N. E. 735, 93 N. E. 996, citing Black | not sufficient means at the command of the stock v. New York & E. R. Co. 20 N. Y. master to overcome the peril or prevent the damage, then the ship would be held to gence. To do this it was necessary to hold have made out a prima facie defense, and that a common carrier could not devest then it would be incumbent on the libellant itself of its character as such. To this efto show further evidence of negligence. The fect it was held in New York C. R. Co. v. Sloga, 10 Ben. 315, Fed. Cas. No. 12,955. Lockwood, 17 Wall. 357, 21 L. ed. 627, 10
And where the defendant met a prima Am. Neg. Cas. 624. facie case by showing that the damage to In Berry v. Cooper, 28 Ga. 543, the case the goods came from the dangers of naviga- of Clark v. Barnwell
, 12 How. 273, 13 L. ed. tion, one of the excepted causes of liability | 985, which held that the burden of proof in the bill of lading, it was held that the was on the plaintiff, was criticized, the court burden then rested on plaintiff to show that saying: “I would remark that the point this danger and loss might have been under consideration was not very prominent avoided by the use of proper care and skill. either in the discussion or the decision of Western Transp. Co. v. Downer, 11 Wall. the case in which it is enumerated.” 129, 20 L. ed. 160. The court said: “There A bill of lading excepted "the dangers was no presumption from the simple fact and accidents of the seas and navigation." of a loss occurring in this way, that there A cargo of merchandise was damaged, and was any negligence on the part of the com- the damage was claimed to have been caused pany.'
by improperly stowing a cargo of salt ise. And where it was shown that damage to tween the decks. It was held that the bura cargo was caused by perils of navigation den of proof was on the libellant to estab. excepted in the bill of lading, it was held lish that this was the cause of the injury. that the burden of proof was then on the The libellant failed. Rich v. Lambert, 12 shipper to show negligence. The Neptune, How. 347, 13 L. ed. 1017. 6 Blatchf. 193, Fed. Cas. No. 10,118.
A bill of lading excepted perils of the sea Where wool was damaged on a voyage, and navigation. A shipment of paper stock from contact with a cargo of wet redwood, was damaged by water and oil. It was held and it was claimed that the damage was that the libellants could show that the damcaused by perils of the sea that were ex-age might have been avoided by the exercepted in the bill of lading, it was held that cise of reasonable skill, but that they should the burden of proof was on the vessel to establish negligence affirmatively. The Sashow this. The court held: “Even if the bioncello, 7 Ben. 357, Fed. Cas. No. 12,198. burden of proof was upon the libellant to More care should have been used in stowing show the particular cause of the injury, I the cargo. think it is sufficiently shown” (improper And where it was shown that the injury stowage). The Pharos, 9 Fed. 912.
to a cargo was sustained during a severe And where the injury to a cargo of hard- stress of weather, and was the result of it. ware was established, and the bill of lad- and there was also affirmative proof of ing excepted the dangers of navigation, it proper care in stowage, it was held that was held incumbent on the carrier to show the burden of proof was on the shipper to that the injury was caused by the dangers show that by proper attention the damage of navigation, and then it devolved on the might have been avoided. The George Heashipper to show that it might have been ton, 20 Fed. 326. avoided by the exercise of skill and care. The carrier proved the encountering by Hunt v. The Cleveland, 6 McLean, 76, Fed. the ship during the voyage of weather suffiCas. No. 6,885.
ciently heavy to warrant the conclusion Thread shipped in cases was damaged that the immediate cause of the destrucfrom the damp and mildewed, and where tion and loss of goods was the motion of the burden of proof was held to be on the the ship in heavy weather, which perils of shipper to show negligence after the injury the sea were excepted. This proof was held was shown to be within the excepted causes. to shift the burden to the libellant to show The bill of lading excepted "dangers and that the result would have been prevented accidents of the seas and navigation.” Clark by due care. Christie y. The Craighton, 41 v. Barnwell, 12 How. 272, 13 L. ed. 985. Fed. 62.
In Chicago, St. L. & N. 0. R. Co. v. Moss, And where the proof by the carrier 60 Miss. 1003, 45 Am. Rep. 428, the case of showed that the breakage of barrels of inClark v. Barnwell, 12 How. 279, 13 L. ed. digo was caused by the excepted perils of 987, was distinguished and criticized, the the sea and the motion of the ship, it was court saying that the rule that the burden held that this shifted the burden of proof of proof to show negligence was on the to the libellant to show that this result of plaintiff was apparently based on the propo- the motion of the ship would have been sition that by the contract the carrier prevented by the exercise of due care in ceased to be a common carrier, and became the stowage of the casks. The Polynesia, a simple bailee for hire. This was held in 30 Fed. 210. York Mfg. Co. v. Illinois C. R. Co. 3 Wall. Where the vessel attempted to show that 107, 18 L. ed. 170. Then the next step damage was caused to drums of glycerine taken by common carriers was in the direc-by perils of the sea, and the bill of lading tion of contracting against their negligence, exempted from loss by leakage, the burden as a private carrier might do. Then the of proof was held to be on the libellant to courts became alarmed and denied that a show negligence. The mates' evidence to common carrier could by contract exempt the effect that the wood fastenings to these itself from losses caused by its own negli.'two drums were all that were displaced