him to bring the case within one of the excepted perils: Angell on Carriers, sec. 202; Story on Bail., sec. 529. And it was not brought within the exception until it was shown that care and skill could not have prevented the loss: 2 Greenl. Ev., sec. 219. We know not where this rule of evidence has been doubted, except in a divided opinion of the supreme court of the United States in the case of Clark v. Barnwell, 12 How. 272. The learned judge who delivered the opinion of the majority was able to bring to his support only the single nisi prius case of Muddle v. Stride, 9 Car. & P. 380, in which Lord Denman instructed the jury that in passing upon all the evidence before them, they must be able to see clearly that the carriers were guilty of negligence before a verdict was found against them.

Judge Nelson very properly admits that it was incumbent upon the carriers to have shown a loss from some one of the causes which, by the general rules of law or the particular stipulations of the parties, would have furnished an excuse for the non-performance of the contract; and that if reasonable skill and attention could have avoided it, "it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty." But he fails to show how, in the nature of things, where constant care was indispensable, the loss could be showr to have been inevitable, without giving prima facie proof that such care was exercised; or what reason, founded in public policy or intrinsic justice, could be given for relieving the carrier, within whose knowledge the facts so peculiarly lay, and by whose agents they could be so easily established, from the necessity of making such proof, and casting the burden of proving the contrary upon the owner of the goods, in most cases ignorant of the facts and without the means of making them appear.

On the whole, we think Mr. Greenleaf fully justified, upon principle and the decided weight of authority, in saying that "in all cases of loss by a common carrier the burden of proof is on him to show that the loss was occasioned by the act of God or by public enemies. And if the acceptance of the goods was special, the burden of the proof is still on the carrier to show, not only that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care:" 2 Greenl. Ev., sec. 219.

We have alluded somewhat at length to the effect of the decision in Davidson v. Graham, 2 Ohio St. 131; not because all the

questions now discussed were not fully considered by the court and explicitly stated, but because some of them were not so directly involved as in the present case, and from a desire to be as explicit as possible upon a subject so highly important to a state whose surplus productions must all find a market through the intervention of common carriers.

The whole may be summed up in this: The carrier, by agreement with the owner, may exonerate himself from responsibility for losses arising from causes over which he has no control, and to which his own fault or negligence has in no way contributed. But in doing so he does not cease to be a common carrier, nor in any manner change his relation to the public as such; and he can only excuse himself for a failure to deliver the goods intrusted to him by showing that, without his fault, he has been prevented by some one of the causes recognized by law, or specifically provided for in the contract.

This case requires very little to be added as to the degree of care exacted of the common carrier. We have already said that he is not at liberty to stipulate for any degree of negligence, and that a loss from negligence can not be within the stipulated exceptions to his liability. Indeed, in the carriage of passengers, and perhaps of goods, by steam, it might not be difficult to place it upon much higher grounds, and to fully justify the remarks of Mr. Justice Grier in delivering the opinion of the court in the case of Philadelphia & Reading R. R. Co. v. Derby, 14 How. 468. He says: "Where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence; and whether the consideration. for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross." But it is only necessary now to say that if the loss was occasioned by negligence, whether slight or gross, it was not within what was, or could have been made by contract, an exception to the carrier's liability.

We are therefore unanimous in the opinion that the district court was right in holding that the burden of proof was upon the carriers to show that there was no negligence or want of care, and that if the loss was the result of any negligence on their part, it was not within any exception provided for in the contract. 2. The court are not unanimous upon the second question pre

sented. A majority, however, concur in holding that no error was committed. From the bill of exceptions it appears that the principal controversy in the case related to the conduct of the pilot at the wheel at the time the accident happened. The defendants below gave evidence to show the situation of the boat, the surrounding circumstances, what the conduct of the pilot was, and the head of steam under which he was running; and then called several experienced pilots, who expressed the opinion that the conduct of the pilot in charge of the boat was correct and proper.

The plaintiffs then introduced several pilots, who expressed a different opinion, and thought the pilot in charge should have stopped the engine. The defendants then proposed to recall their witnesses, and also some other pilots who had not been examined, and to prove by them that, in their opinion, it was not the duty of the pilot to have stopped the engine. This evidence, being objected to, was ruled out.

It will be observed that all these witnesses were giving opinions upon exactly the same circumstances. No attempt was made to change or vary them in the least. Under the circumstances, the defendants' witnesses were of opinion that the pilot was right in keeping on steam, and doing just as he did do. With a view to the same circumstances, the plaintiffs' witnesses were of a different opinion, and thought he should have shut the steam off. Now, what could have been accomplished by recalling the defendants' witnesses, other than a repetition of the opinion previously expressed, we are quite unable to see. It is true, they might have said expressly that the pilot should not have stopped the engine (a question they had not before been asked), but in the end it would amount to nothing more than an opinion that he should have done as he did, and not differently. There can be no dispute as to the general rule of evidence.

The party upon whom the affirmation of an issue devolves is bound to give all his evidence in support of the issue in the first instance; and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary. In this case no new matter was introduced. The opinions of the defendants' witnesses were simply encountered by those of the plaintiffs'. But while this is the rule, and generally to be adhered to, I am very far from saying that in the exercise of a sound discretion it is never to be relaxed.

Indeed, very few cases can arise in which a court would be jus

tified in closing the case until all the evidence offered in good faith, and necessary to the ends of justice, has been heard.

And it is very probable, in this case, that a fuller examination should have been allowed. But this must always be an appeal to the sound discretion of the court, to be determined with a view to all the circumstances, and however determined, is not reviewable on error. It is our duty to see that the rules of law are not infringed, but we can not revise the mere discretion of an inferior tribunal.

SWAN, J. I concur in the opinion that the burden of proof was upon the carriers to show that there was no negligence; and that if the loss was the result of any negligence, it was not within any exception provided in the contract.

But in thus holding and requiring proof by the carrier of the cause of the loss and of care, the course of proof in the case must necessarily be thus: the plaintiff first proves the delivery of the goods to the carrier, and that they were not received by the plaintiff. This entitles the plaintiff to recover. The carrier must then prove that the loss arose from one of the exceptions provided for by the contract, and that the servants of the carrier were in the due exercise of care. This proof made out prima facie would entitle the carrier to a verdict.

The plaintiff then may prove any fact or omission of duty establishing negligence. If this fact be a specific one, upon which the witnesses of the carrier were not examined, such, for instance, as that the engine should have been stopped, it is, I conceive, the right of the defendant to rebut such testimony; for the specific fact, and omission of care, upon which the action is founded, is then for the the first time disclosed and proved by the said plaintiff.

According to my view of the case, under the rule adopted by the majority of the court and applied in this case, the carrier is first required to make out a prima facie case of care, and then, when the plaintiff proves his cause of action, the defendant is precluded from giving evidence in his defense; for how can he anticipate what act of negligence will be proved against him? Surely he is not to come prepared with witnesses to rebut every possible claim of neglect that may be alleged. This would require witnesses to be produced at perhaps great cost, and consume the time of the court in rebutting claims never intended to be made by the plaintiff.

The present action was brought to recover damages on account of loss of goods arising from the servant of the carrier not stop

ping his engine under circumstances which due care demanded. The ground of the action was not disclosed by the pleadings or the proof, or by any reference to it in the examination of witnesses, until the plaintiff gave in his rebutting testimony. I think the judgment should be reversed.

THURMAN, C. J., concurred with SWAN, J.

COMMON CARRIERS ARE INSURERS OF GOODS AGAINST ALL BUT ACTS OF GOD AND PUBLIC ENEMY, in absence of any qualification of their liability: Norway Plains Co. v. Boston & Maine R. R. Co., 61 Am. Dec. 423, and note thereto 432, collecting cases in this series.

HOW COMMON CARRIER'S LIABILITY AS INSURER MAY BE MODIFIED: See note to Norway Plains Co. v. Boston & Maine R. R. Co., 61 Am. Dec. 423, containing a collection of cases on the subject.

BURDEN OF PROOF AS TO NEGLIGENCE: See full and exhaustive note to Van Hern v. Taylor, 41 Am. Dec. 281-290, on "Perils of the Sea." On the same subject in railroad cases, read the note to Burroughs v. Housatonic R. R. Co., 38 Id. 70-79. And the same topic, with reference to the liability of warehousemen, will be found treated in a comprehensive note to Schmidt v. Blood, 24 Id. 145-160.

THE PRINCIPAL CASE WAS CITED in Wilsons v. Hamilton, 4 Ohio St. 740, where it was said that the court had gone far enough in allowing a carrier to limit his responsibility as an insurer for losses occasioned without his fault. It was also cited to this point in Welsh v. Pittsburgh etc. R. R. Co., 10 Id. 70; U. S. Express Co. v. Bachman, 2 Cin. Super. Ct. 255; and was approved in Childs v. Little Miami R. R. Co., 1 Id. 481. That a common carrier can not contract against negligence, the principal case was cited in U. S. Express Co. v. Bachman, 2 Id. 255; Welsh v. Pittsburgh etc. R. R. Co., 10 Ohio St. 75; Cleveland etc. R. R. Co. v. Curran, 19 Id. 12; Cincinnati etc. R. R. Co. v. Pontius and Richmond, Id. 235; U. S. Express Co. v. Bachman, 28 Id. 150; Telegraph Co. v. Griswold, 37 Id. 311. As to this point it was also approved and followed in State v. Commissioners etc., 26 Id. 598. The principal case was cited in Fatman & Co. v. Cincinnati etc. R. R. Co., 2 Disney, 254; U. S. Express Co. v. Bachman, 2 Cin. Super. Ct. 257; Railroad Co. v. Barrett, 36 Ohio St. 453; Railroad Co. v. Campbell, Id. 658, to the proposition that burden of proof is on the carrier claiming immunity under special contract to show absence of negligence on his part; and was fol lowed. See also cases above cited, concerning contract against negligence, to the same effect. The doctrine of the principal case, that the public are interested in the performance by carriers of their duties, was recognized in Fatman & Co. v. Cincinnati etc. R. R. Co., 2 Disney, 254. The principal case was cited in Gaines v. Union Trans. & Ins. Co., 28 Ohio St. 438, showing that special notice is necessary if common carrier wishes to limit his liability; that burden of proof is on carrier to show loss within the exception; and that he used due care to prevent it. This is settled law in Ohio. It was cited in the same case, and in Railroad Co. v. Barrett, 36 Id. 453, showing that assent of the shipper will not be presumed; and in Cincinnati etc. R. R. Co. v. Pontius and Richmond, 19 Id. 236, to the point that the bill of lading is the written contract of carriage, and can not be contradicted by parol. The doctrine of the principal case concerning the introduction of evidence was cited and approved in Runyan v. Price, 19 Ohio St. 5; Berry v. State, 31 Id. 230; Mehurin v. Stone, 37 Id. 59