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Adams Exp. Co. 77 N. J. L. 19, 71 Atl. 683; | to the cause of the fire which destroyed Wabash R. Co. v. Curtis, 134 Ill. App. 409. the carload of horses and responsibility

therefor has been omitted.” An underPhilip E. Brown, J., delivered the opin- standing of the questions to be determined ion of the court:

requires a statement of the issues made by Action to recover $3,820 for the loss the pleadings, with the evidence adduced by fire of a carload of horses numbering in the course of the trial. sixteen, and eight sets of harnesses. The The complaint is based squarely upon a case was tried to a jury, who returned a breach of the defendant's common-law duty verdict for the plaintiff for $3,205.12. The as a common carrier in the transportation defendant appealed from an order denying of the property mentioned, and alleges in a new trial.

substance the plaintiff's possession of the The case comes here upon a bill of ex- horses and harnesses near Willow River, ceptions, which, according to the trial Minnesota, under a contract of hire with court's certificate thereto,' contains a comtheir owner, coupled with a condition that plete record of all proceedings had, includ- the plaintiff was to return them to him at ing all the evidence offered on the trial, Stillwater, Minnesota; that for the purpose “except that most of the evidence relative' of performing this obligation the plaintiff,

In Wardlaw v. South Carolina R. Co. 11, on the ground that where the subject-matRich. L. 337, it was said: "In this state ter of the allegation was peculiarly within the rule on the subject of limiting the lia- the knowledge of one of the parties, he bility of a carrier has been relaxed, though should prove it. Distinguished in Graham the onus still rests to bring himself with v. Belfast & N. C. R. Co. [1901] 2 I. R. in the exceptions and to discharge himself 13. of negligence."

And where the acceptance of the goods And the onus was held to be on the car- was special, it was held that the burden of rier to show that the injury to a broken proof was on the carrier to show, not only stove was within the exception of the bill that the cause of loss was within the excepof lading exempting for breakage, and also tion, but that there was no negligence on that there was no negligence. Baker v. the part of the carrier. Shea v. MinneapoBrinson, 9 Rich. L. 201, 67 Am. Dec. 548. lis & St. P. & S. Ste. M. R. Co. 63 Minn. 228, This was on the ground that it is a sound 65 N. W. 458. Oranges were shipped, and rule which devolves the onus on him who the bill of lading exempted for loss from best knows what the facts are,

heat or frost. And where earthenware and hardware And where apples were frozen, and the were shipped under a contract exempting bill of lading provided that the carrier from dangers of seas and navigation, and would not be liable for damage from frost, were injured, it was held that the burden it was held that the burden was on the carwas on the carrier to show that the damage rier to show that it was not negligent. Hinproceeded from an excepted cause. Camer-ton v. Eastern R. Co. 72 Minn. 339, 75 N. on v. Rich, 4 Strobh. L. 168, 53 Am. Dec. W. 373. 670.

b. Fire. A bill of lading exempted from liability for leakage of oil. It was held that where In MCGRATH V. NORTHERN P. R. Co. it oil was lost the burden of proof was on the was held that where a carload of horses carrier to show that there was no negligence were burned the burden of proof as to on its part. Baltimore & 0. R. Co. v. negligence was on the carrier, where the Oriental Oil Co. 51 Tex. Civ. App. 336, 111 contract provided that the company should S. W. 979.

not be liable for damage unless it was A diamond was sent by express and lost. caused by negligence of its employees. The The contract provided that the carrier would loading of the car was finished about 9 P. not be liable for loss unless caused by its m., and the man loading went to the village fraud or gross negligence, and not for any for lunch, and in the meanwhile the car amount over $50 unless otherwise specified. was burned. This rule is supported by a It was held that the burden of proof was considerable number of cases. on the carrier to show that the loss was The shipper was held to make a prima within the exception, and also that it was facie case against the carrier when he not negligent. Brown v. Adams Exp. Co. showed that the goods were not delivered. 15 W. Va. 812. And the same was held | This cast the onus on the carrier to show where a watch was lost. Southern Exp. that the loss occurred from a danger of Co. v. Seide, 67 Miss. 609, 7 So. 547. the river or fire, excepted in the bill of

In Mahony v. Waterford, L. & W. R. Co. lading; and it should also prove a prima (1900) 2 I. R. 273, where goods were facie case of diligence on its part. Grey shipped over connecting lines, at the own- v. Mobile Trade Co. 55 Ala. 387, 28 Am. er's risk, and were damaged, it was held Rep. 729. In this case a steamer loaded that the onus of providing that they were with cotton was burned because the cotton not damaged by the wilful misconduct of was not covered with tarpaulin, and sparks the servants of the contracting company from a match or pipe came in contact with was on the

contracting company. This was I it.

in March, 1912, delivered to the defendant, being made a part of the answer; denies and the defendant as a common carrier re- the receipt of the harnesses; admits the ceived, such property for the purpose of destruction of the horses by fire; denies that transporting it from Willow River station the fire was caused by any act or omission to the plaintiff at Stillwater for a rea- on the defendant's part, or that it was due sonable compensation; that the defendant to its negligence; alleges that the destrucfailed to transport any of the property, but, tion of the horses was caused solely by the on the contrary, so conducted itself in re- negligence of the shipper, consignee, and gard thereto that it was destroyed by fire their servants and agents; and denies all while in the defendant's possession at other allegations of the complaint. The rethe station mentioned. No negligence is ply put in issue all the allegations of the charged. The answer admits that the de- answer. The relevant portions of the confendant received from one Matson the car tract referred to will be stated later in this load of horses mentioned, and that the same opinion. were consigned to the plaintiff at Still- The plaintiff, during the trial, withdrew water; alleges that Matson and the defend his claim for the destruction of the har. ant entered into a contract for the trans- nesses. To establish the allegations of his portation of the horses, a copy of the same complaint he offered evidence conclusively

Where the liability of the defendant was| 428. The court said: “All the authorities that of a carrier when the cotton was hold that it devolves upon the carrier to burned, it was held that it was incumbent show the loss to have occurred by the exon the carrier to show that the burning cepted cause. In doing this it will add but was without negligence on its part. Lou- little to his burden to show all the attendisville & N. R. Co. v. Oden, 80 Ala. 38. The ing circumstances; and that the burden rests bill of lading exempted from loss by fire. upon him to do so, and disprove his own

So where the bill of lading exempted negligence, we think arises from the terms from loss by fire, it was held that the bur of the contract, from the character of his den of proof was on the carrier to show that occupation, and from that rule governing it had used due care and reasonable dili- the production of evidence which requires gence to prevent loss. Louisville & N. R. the facts to be proved by that party in Co. v. Gidley, 119 Ala. 523, 24 So. 753. whose knowledge they peculiarly lie.”

A bill of lading released from all liability Goods were shipped, "unavoidable dangers for damages arising from fire not the re- excepted,” and were burned. It was held sult of negligence of the carrier.

It was

that fire was not an unavoidable danger, held that where the goods were lost by fire, and, if intended to be excepted, the conthe burden of proof was on the carrier to tract should have so stated. Then the car. show absence of negligence, Louisville & rier would be bound to show the origin of N. R. Co. v. Cowherd, 120 Ala. 51, 23 So. the fire. Union Mut. Ins. Co. v. Indianap793.

olis & C. R. Co. 1 Disney (Ohio) 480. The This rule was adopted in Mouton v. court said: “The presumption founded on Louisville & N. R. Co. 128 Ala. 537, 29 So. public policy will be that the cause or 602; Central of Georgia R. Co. v. Burton, origin of the fire might have been avoided, 165 Ala. 425, 51 So. 643; Louisville & N. and the defendant must show what it was, R. Co. v. Touart, 97 Ala. 514, 11 So. 756; and that it was unavoidable." Merchants' Dispatch Transp. Co. v. Hoskins, And where whisky was shipped by ex. 14 Ky. L. Rep. 927 (in this case the plain-press, and burned on the way, and it was tiff assumed the burden) ; Southard v. Min-claimed the contract was "subject to the neapolis, St. P. & S. Ste. M. R. Co. 60 Minn. $20 clause,” it was held that this clause 382, 62 N. W. 442, 619; Newberger Cotton would not apply in case of negligence, and Co. v. Illinois C. R. Co. 75 Miss. 303, 23 that the burden of proof was on the carrier So. 186; Houston & T. C. R. Co. v. Bath, 17 to show that it exercised due diligence. Tex. Civ. App. 697, 44 S. W. 595; Galves- United States Exp. Co. v. Backman, 28 ton, H. & S. A. R. Co. v. Efron, Tex. Ohio St. 144. Civ. App. , 38 S. W. 639, 1 Am. Neg. A bill of lading exempted from loss by Rep. 192; Texas & P. R. Co. v. Payne, 15 fire from any cause whatever. Cotton was Tex. Civ. App. 58, 38 S. W. 366; Missouri burned. It was held that the burden was P. R. Co. v. China Mfg. Co. 79 Tex. 26, 14 on the carrier to show that the loss was S. W. 785; Houston & T. C. R. Co. v. Mc-within the terms of the agreement, and Fadden, 91 Tex. 194, 42 S. W. 593; Ryan that it was occasioned without fault or v. Missouri, K. & T. R. Co. 65 Tex. 13, 57 neglect on its part. Gaines v. Union Transp. Am. Rep. 589. This latter case held this & Ins. Co. 28 Ohio St. 418. on the ground that “the burden of proof is Goods were burned before they were loadon him who best knows the facts."

ed on the cars. It was claimed that a A shipping contract for cotton authorized parol contract exempted from fire, and that the use of flat cars, and exempted from loss the bill of lading to be issued also was to by fire. It was held that the burden of contain such exemption. It was held that proof was on the carrier to show that it a carrier could limit its liability for losses was not negligent. Chicago, St. L. & N. 0. happening without its fault or negligence, R. Co. v. Moss, 60 Miss. 1003, 45 Am. Rep. and that the burden would be on the carrier establishing that prior to the shipment in | said Matson, the plaintiff's employee, from question he was conducting extensive log. the plaintiff's camp to the station for shipging operations in the vicinity of Willow ment. According to McGillen's testimony, River, using therein a great many horses; Matson's instructions were to take the that the horses destroyed, and also certain horses “out to Willow River, load them, and others in the plaintiff's possession, belonged go down to Stillwater with them.” Matto one Farmer at Stillwater, from whom son testified that his instructions were “to the plaintiff had previously hired them, pur- take them horses out to Willow River, and suant to a contract whereby he had under load them and take them to Stillwater, and taken to return them; that to that end deliver them to H. C. Farmer.” It also one of the plaintiff's agents, named Mc- appeared that on the journey to the station Gillen, ordered by phone from the defend-one Patient, an ex-employee of the plaintiff, ant's agent at Willow River several cars, joined Matson and was permitted by him to one for Monday and two for Tuesday fol. ride one of the horses to the town; that lowing the order; that Monday one carload when Matson reached the station he was of horses was delivered to the defendant, advised by the defendant's agent that a car and that on the next day the horses which would be spotted for him, and that in the were destroyed were sent in charge of the afternoon of the same day he loaded the to establish such liniited liability, and to Where the contract provided exemption show that the loss fell within such limita from liability for certain causes, it was tion. Pittsburgh, C. & St. L. R. Co. v. held that the burden of proof was on the Barrett, 36 Ohio St. 448.

carrier to show that a loss was occasioned A bill of lading for cotton exempted from i by one of the excepted causes, and also that loss by fire. It was held that where the its negligence did not contribute to the loss. cotton was burned, the burden of proving Newport News & M. Valley Co. v. Holmes, that there was no negligence was upon the 14 Ky. L. Rep. 853. carrier. Swindler v. Hilliard, 2 Rich. L. In Childs v. Little Miami R. Co. 1 Cin. 286. The court said: "They were bound Sup. Ct. Rep. 480, cotton was burned on a to show not only that the cotton was de- side track. The defendant denied that the stroyed by fire, but the circumstances un- loss was not among the exemptions in the der which the destruction took place.” bill of lading, and also denied all negligence.

Cotton was burned. The bill of lading It was held that the burden of proof was exempted from liability for loss by fire. on the plaintiff, who alleged it in the petiIt was held that the burden of proof as to tion. In United States Exp. Co. v. Bachabsence of negligence was on the carrier. man, 2 Cin. Sup. Ct. Rep. 251, it was said Texas & P. R. Co. v. Richmond, 94 Tex. that this case, so far as it fails to conform 571, 63 S. W. 619, reversing Tex. Civ. to the decision in Graham v. Davis, 4 Ohio App. 61 S. W. 410. The court said: St. 374, 62 Am. Dec. 285, is imperfectly re“The law does not require a railroad com- ported. pany, in defending itself under such a contract, to exclude the possibility that the

c. Live stock. fire occurred from some cause connected with the management of its railroad, nor

1. Generally. in fact to exclude the possibility of negligence on the part of its servants. The A contract under which horses were car. burden of proof means in this case, as in ried excepted liability for fire when not others, that there must be sufficient evi- caused by negligence of the carrier. It was dence introduced to justify a jury in find-held that the burden of proof was on the ing a verdict in favor of the party who carrier to show want of negligence. Texas affirms the issue."

& P. R. Co. v. Dishman, 38 Tex. Civ. App. In Fire Asso. of Philadelphia v. Loeb, 25 277, 85 S. W. 319. Tex. Civ. App. 24, 59 S. W. 617, the bill of A shipping contract provided that the lading exempted from liability for loss by carrier should not be liable for injury to fire, and also provided that in case of fire the live stock except for injury caused by the burden of proof as to the negligence its negligence, and that the shipper assumes would be on the shipper. It was held that all risks of damage from delay.

It was the plaintiff, having proved that the fire held that the burden of proof was on the was caused by a defective spark arrester, party possessed of the knowledge to make made a prima facie case of negligence, and proof. Jolliffe v. Northern P. R. Co. 52 the carrier failed to show that the engine Wash. 433, 100 Pac. 977. This stock was was properly handled or that the fire was injured by delay. The court said: “Railnot set out by its negligence. The court road companies do not usually establish said: “The plaintiff had the burden of their bureaus of information either in a proof to show the negligence of the com- horse car or a caboose,—the only apartpany, and sustained it by showing that the ments in the train which were available to fire was set out by sparks from the engine. the shipper." So the provision in the bill of lading was That case was distinguished in Bartlett complied with, whether it was such as v. Oregon R. & Nav. Co. 57 Wash. 16, 135 could have been enforced by law or not." Am. St. Rep. 959, 106 Pac. 487.



horses, finishing about 9 P. M., after which the car. Save as above stated, the record he went to the village for lunch; and that contains no evidence as to the origin of the about half an hour or more thereafter the fire. car was discovered to be on fire, and the Other material evidence was received, horses destroyed. Testimony was offered bearing upon questions other than the first that the value of the "horses was $225 each. two to be discussed, and will be stated later On cross-examination Matson testified that in its proper connection. It is conceded on the afternoon of the same day he signed that the plaintiff, although not the owner the contract, a copy of which was attached of the horses, had the right, as consignee to the answer; the original being offered in thereof, to sue to recover damages for their evidence by the defendant and received. injury and destruction, and this unquesThere was also evidence tending to show tionably is the law. Grinnell-Collins Co. v. that Patient was at the car while the load Illinois C. R. Co. (Grinnell-Collins Co. ing was being done; that he purchased a v. Chicago, M. & St. P. R. Co.) 109 Minn. lantern on the night of the fire, and was 513, 26 L.R.A. (N.S.) 437, 124 N. W. 377. then intoxicated; that he had the lighted 1. The effect of the court's charge was lantern that night at about 8 or 9 o'clock; to permit a recovery without proof of neg. and that someone was burned to death in 'ligence, and the defendant, predicating its

A mare was injured on the cars and his default, but was due to the inherent died. It was held that, upon a showing nature or propensity or “proper vice" of the made by plaintiffs that the mare was in animal transported. Boehl v. Chicago, M. jured while in the custody of the carrier, & St. P. R. Co. 44 Minn. 191, 46 N. W. 333. the burden was on the carrier to show that The court said: “So, in this case the burthe injury happened without fault on its den was upon the plaintiff to establish by a part, or from a cause excepted in the con- preponderance of evidence that the animal tract. Alabama G. S. R. Co. v. Gewin, 5 was thrown down or injured by the violent Ala. App. 584, 59 So. 553.

collision of the cars as alleged, and this And where the carrier was in exclusive unexplained would make a prima facie case control of stock, the shipper not having ac. of negligence, and would then devolve on companied it, and a mare died shortly aft- the defendant, as a common carrier, .. er delivery, it was held that where the to disprove its negligence." The issue beevidence showed that the mare died for ing made as to the specific charge of neg. want of food and water, this was a sufficientligence, the clause of the contract limiting prima facie showing of negligence, casting the carrier's liability was considered as the burden of proof on the carrier to over- eliminated from the case. come the prima facie case. Mering v. In Lindsley v. Chicago, M. & St. P. R. Southern P. Co. 161 Cal. 297, 119 Pac. 80. Co. 36 Minn. 539, 1 Am. St. Rep. 692, 33 The bill of lading exempted from liability N. W. 7, where a lot of hogs died on the except for gross negligence.

cars, and the carrier had exclusive care, it The shipper signed a limited liability was said: “In general, although the rule live stock contract, providing exemption that the carrier is absolutely responsible from loss on account of delay, beyond the as an insurer of the property is subject to expense of feed and water. It was held some exceptions, as in cases where the inincumbent on the carrier to prove that the jury or loss is to be referred to the act of shipper assented to the terms of the con God or the violence of public enemies, yet tract. Shoot v. Cleveland, C. C. & St. L. the burden of proof, as respects the cause R. Co. 145 Ill. App. 532.

of loss or injury, is, even in such cases, upProof of delivery to the carrier of live on the carrier, who, to exonerate himself stock in good condition, and its injury from liability, must show that the cause while in the custody of the carrier, was of the loss was of the exceptional kind held to make a prima facie case. The car which the law recognizes as excusing him." rier could have successfully rebutted the Some cattle were injured and some were prima facie case against it, by proof that missing. It was held incumbent on the it had provided all suitable means of trans- carrier to show that it was exempt from portation, and had exercised that degree liability by reason of risks assumed by the of care which the nature of the property shipper, and it was also held that the burrequired. If an animal escaped from the den of proof was on the carrier to show carrier, the co-operating cause of the es- that none of the injury complained of was cape would be presumed to have been the caused by its negligence. Kansas City, M. negligence of the carrier, unless it was re- & B. R. Co. v. Heard, 87 Miss. 378, 39 So. lieved by proof to the contrary or by the 1011. terms of the contract, Baltimore & 0. S. And the burden was held to be on a car. W. R. Co. v. Fox, 113 Ill. App. 180.

rier relying on a contract stipulating for Where the shipper of live stock proved a restricted liability, to prove it, if it was the delivery to the carrier and the fact not proved by the other party, and to show that damage occurred during transit by that the injury complained of resulted reason of the bumping of cars, it was held without fault on the part of the carrier, that the burden was then on the carrier to from some cause excepted by the contract. show that the loss was not occasioned by Chicago, St. L. & N. O. R. Čo. v. Abels, 60

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claims upon a stipulation contained in the contract for the transportation of the special contract mentioned, contends that horses, and that the written one was valid such was reversible error, for the reason and binding upon the plaintiff in accordthat under the contract the plaintiff was ance with its terms. bound to prove the defendant's negligence; At common law the defendant was an the provision thereof relied upon in this insurer of the property, and in the absence connection being that “the company shall of an express contract, leaving out of acnot be liable for delay in transit or for the count the question of contributory negliloss of, death of, or injuries to the stock, gence, the plaintiff was entitled as a matter unless the same is caused by the negligence of law to recover the value of the property of the company, its agents or employees.” destroyed without proving negligence on the For the purpose of the discussion of this part of the defendant; and even if there point, and also for all other matters con- an express contract, which we now sidered in this opinion, we will assume, not assume as above stated, no duty devolved withstanding the plaintiff's contention to upon the plaintiff to plead it, it being his the contrary, that the answer was sufficient. right and privilege to do just what he We will also assume, for the purposes of did,—that is, to base his action upon the the present inquiry, that there was no oral' defendant's common-law liability, and leave Miss. 1017. The court said that “the car- v. Columbia & G. R. Co. 26 S. C. 258, 2 S. rier in such case must show, at least prima E. 19. facie, that the injury did not result from A shipping contract for cattle provided neglect.” In this case the shipper had as- that, for damage through negligence, the sumed all risk.

value by the schedule of $75 each should In Louisville, M. O. & T. R. Co. v. Bigger, control; that in case of negligent delay the 66 Miss. 319, 6 So. 234, a mule was injured. damage should be the value of food and The court left the special contract out of water purchased by the shipper while so view, and held that the burden was on the detained. An unusual delay having been carrier to acquit itself, which was done. proved, it was held that it devolved upon

Sheep were injured by delay and storm. the defendant to show that the delay was The jury were instructed that if the evi- from a cause for which it was not respon. dence did not show that the sheep died or sible. It was held that the carrier could were injured from inherent want of vitali- not exempt itself from negligence of its ty, or from injuries inflicted on each other, servants. Bosley v. Baltimore & 0. R. Co. the carrier would be liable unless it proved 54 W. Va. 563, 66 L.R.A. 871, 46 S. E. 613. that the injury was occasioned by some oth- The court said that the later decisions do ei cause than its negligence, and in the ab- not regard the case of Baltimore & 0. R. Co. sence of such proof the law would presume v. Rathbone, 1 W. Va. 87, 88 Am. Dec. 664, negligence on the part of the carrier. Nel as the law of the state. son v. Great Northern R. Co. 28 Mont. 297, A carload of jacks was shipped under a 72 Pac. 642. The agent of the shipper ac- contract exempting from liability for loss companied the stock, but the shipper de- from arning of hay, straw, or material clared on common-law liability. The ex- used by the owner. It was held that plainceptions to common-law liability were to tiffs having shown the burning and the dambe proved by the carrier, and, if the pres- ages and the absence of the negligence of ence of the agent of the shipper prevented their employees, a prima facie case the defendant from discharging its duties, made against the carrier, and on failure to the burden of proving this was on the de- rebut it plaintiff's should recover. St. Louis fendant.

& S. F. R. Co. v. Parmer, Tex. Civ. App. A shipper of live stock agreed to exempt 30 S. W. 1109. the carrier from all claim for loss except A carrier was not to be liable for injuries that caused by the negligence of the carrier. to live stock “by reason of any inherent It was held that the burden was on the car. vice" "or disposition to hurt each other.” rier to show that the loss was not caused | It was held that the burden was on the carby its negligence. Davis Bros. v. Blue Ridge rier to show that the injury arose from this R. Co. 81 S. C. 466, 62 S. E. 856.

Ft. Worth & D. C. R. Co. v. Great. A live stock contract provided that the house, 82 Tex. 104, 17 S. W. 834. shipper accepted the cars furnished. Horses And where the owner did not accompany were injured by a defective car and cattle stock shipped by express, it was held that shoot. It was claimed that it was error to a prima facie case was made where owner. refuse an instruction "that plaintiffs should ship, shipment, and damage were proved, not simply show negligence only, but should and that the carrier had the burden of provalso show that the injury complained of ing facts relieving it from liability. Swiresulted from this negligence.” The court ney v. American Exp. Co. 144 Iowa, 342, 115 said: “But in a case against a common N. W. 212, 122 N. W. 957, distinguished in carrier, like the one at bar, where the de- Colsch v. Chicago, M. & St. P. R. Co. 149 fendant is liable unless he proves that the Iowa, 176, 34 L.R.A.(N.S.) 1013, 127 N. W. injury was occasioned by a cause which, 198, Ann. Cas. 1912C, 915. under the principles above, he is exempt And where it was understood that the from, it has no application.” Wallingford I shipper would not go with live stock al



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