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 under Philip E. Brown, J., delivered the opin- standing of the questions to be determined ion of the court: Action to recover $3,820 for the loss by fire of a carload of horses numbering sixteen, and eight sets of harnesses. The case was tried to a jury, who returned a verdict for the plaintiff for $3,205.12. The defendant appealed from an order denying a new trial. The case comes here upon a bill of exceptions, which, according to the trial court's certificate thereto, contains a complete record of all proceedings had, including all the evidence offered on the trial, "except that most of the evidence relative In Wardlaw v. South Carolina R. Co. 11 Rich. L. 337, it was said: "In this state the rule on the subject of limiting the liability of a carrier has been relaxed, though the onus still rests to bring himself within the exceptions and to discharge himself of negligence." And the onus was held to be on the carrier to show that the injury to a broken stove was within the exception of the bill of lading exempting for breakage, and also that there was no negligence. Baker v. Brinson, 9 Rich. L. 201, 67 Am. Dec. 548. This was on the ground that it is a sound rule which devolves the onus on him who best knows what the facts are. And where earthenware and hardware were shipped under a contract exempting from dangers of seas and navigation, and were injured, it was held that the burden was on the carrier to show that the damage proceeded from an excepted cause. Cameron v. Rich, 4 Strobh. L. 168, 53 Am. Dec. 670. A bill of lading exempted from liability for leakage of oil. It was held that where oil was lost the burden of proof was on the carrier to show that there was no negligence on its part. Baltimore & O. R. Co. v. Oriental Oil Co. 51 Tex. Civ. App. 336, 111 S. W. 979. A diamond was sent by express and lost. The contract provided that the carrier would not be liable for loss unless caused by its fraud or gross negligence, and not for any amount over $50 unless otherwise specified. It was held that the burden of proof was on the carrier to show that the loss was within the exception, and also that it was not negligent. Brown v. Adams Exp. Co. 15 W. Va. 812. And the same was held where a watch was lost. Southern Exp. Co. v. Seide, 67 Miss. 609, 7 So. 547. requires a statement of the issues made by the pleadings, with the evidence adduced in the course of the trial. The complaint is based squarely upon a breach of the defendant's common-law duty as a common carrier in the transportation of the property mentioned, and alleges in substance the plaintiff's possession of the horses and harnesses near Willow River, Minnesota, under a contract of hire with their owner, coupled with a condition that the plaintiff was to return them to him at Stillwater, Minnesota; that for the purpose of performing this obligation the plaintiff, on the ground that where the subject-matter of the allegation was peculiarly within the knowledge of one of the parties, he should prove it. Distinguished in Graham v. Belfast & N. C. R. Co. [1901] 2 I. R. 13. And where the acceptance of the goods was special, it was held that the burden of proof was on the carrier to show, not only that the cause of loss was within the exception, but that there was no negligence on the part of the carrier. Shea v. Minneapolis & St. P. & S. Ste. M. R. Co. 63 Minn. 228, 65 N. W. 458. Oranges were shipped, and the bill of lading exempted for loss from heat or frost. And where apples were frozen, and the bill of lading provided that the carrier would not be liable for damage from frost, it was held that the burden was on the carrier to show that it was not negligent. Hinton v. Eastern R. Co. 72 Minn. 339, 75 N. W. 373. b. Fire. In MCGRATH V. NORTHERN P. R. Co. it was held that where a carload of horses were burned the burden of proof as to negligence was on the carrier, where the contract provided that the company should not be liable for damage unless it was caused by negligence of its employees. The loading of the car was finished about 9 P. M., and the man loading went to the village for lunch, and in the meanwhile the car was burned. This rule is supported by a considerable number of cases. The shipper was held to make a prima facie case against the carrier when he showed that the goods were not delivered. This cast the onus on the carrier to show that the loss occurred from a danger of the river or fire, excepted in the bill of lading; and it should also prove a prima facie case of diligence on its part. Grey v. Mobile Trade Co. 55 Ala. 387, 28 Am. Rep. 729. In this case a steamer loaded with cotton was burned because the cotton was not covered with tarpaulin, and sparks from a match or pipe came in contact with In Mahony v. Waterford, L. & W. R. Co. [1900] 2 I. R. 273, where goods were shipped over connecting lines, at the owner's risk, and were damaged, it was held that the onus of providing that they were not damaged by the wilful misconduct of the servants of the contracting company was on the contracting company. This was it. in March, 1912, delivered to the defendant, I 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 Stillwater; alleges that Matson and the defendant entered into a contract for the transportation of the horses, a copy of the same Where the liability of the defendant was that of a carrier when the cotton was burned, it was held that it was incumbent on the carrier to show that the burning was without negligence on its part. Louisville & N. R. Co. v. Oden, 80 Ala. 38. The bill of lading exempted from loss by fire. So where the bill of lading exempted from loss by fire, it was held that the burden of proof was on the carrier to show that it had used due care and reasonable diligence to prevent loss. Louisville & N. R. Co. v. Gidley, 119 Ala. 523, 24 So. 753. A bill of lading released from all liability for damages arising from fire not the result of negligence of the carrier. It was held that where the goods were lost by fire, the burden of proof was on the carrier to show absence of negligence. Louisville & N. R. Co. v. Cowherd, 120 Ala. 51, 23 So. 793. V. The plaintiff, during the trial, withdrew his claim for the destruction of the harnesses. To establish the allegations of his complaint he offered evidence conclusively 428. The court said: "All the authorities hold that it devolves upon the carrier to show the loss to have occurred by the excepted cause. In doing this it will add but little to his burden to show all the attending circumstances; and that the burden rests upon him to do so, and disprove his own negligence, we think arises from the terms of the contract, from the character of his occupation, and from that rule governing the production of evidence which requires the facts to be proved by that party in whose knowledge they peculiarly lie.” Goods were shipped, "unavoidable dangers excepted," and were burned. It was held that fire was not an unavoidable danger, and, if intended to be excepted, the contract should have so stated. Then the carrier would be bound to show the origin of the fire. Union Mut. Ins. Co. v. Indianapolis & C. R. Co. 1 Disney (Ohio) 480. court said: "The presumption founded on public policy will be that the cause or origin of the fire might have been avoided, and the defendant must show what it was, and that it was unavoidable." The $20 clause," it was held that this clause would not apply in case of negligence, and that the burden of proof was on the carrier to show that it exercised due diligence. United States Exp. Co. v. Backman, 28 Ohio St. 144. This rule was adopted in Mouton Louisville & N. R. Co. 128 Ala. 537, 29 So. 602; Central of Georgia R. Co. v. Burton, 165 Ala. 425, 51 So. 643; Louisville & N. R. Co. v. Touart, 97 Ala. 514, 11 So. 756; Merchants' Dispatch Transp. Co. v. Hoskins, And where whisky was shipped by ex14 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. 382, 62 N. W. 442, 619; Newberger Cotton Co. v. Illinois C. R. Co. 75 Miss. 303, 23 So. 186; Houston & T. C. R. Co. v. Bath, 17 Tex. Civ. App. 697, 44 S. W. 595; Galveston, H. & S. A. R. Co. v. Efron, Tex. Civ. App. - 38 S. W. 639, 1 Am. Neg. Rep. 192; Texas & P. R. Co. v. Payne, 15 Tex. Civ. App. 58, 38 S. W. 366; Missouri P. R. Co. v. China Mfg. Co. 79 Tex. 26, 14 S. W. 785; Houston & T. C. R. Co. v. MeFadden, 91 Tex. 194, 42 S. W. 593; Ryan v. Missouri, K. & T. R. Co. 65 Tex. 13, 57 Am. Rep. 589. This latter case held this on the ground that "the burden of proof is on him who best knows the facts." A bill of lading exempted from loss by fire from any cause whatever. Cotton was burned. It was held that the burden was on the carrier to show that the loss was within the terms of the agreement, and that it was occasioned without fault or neglect on its part. Gaines v. Union Transp. & Ins. Co. 28 Ohio St. 418. Goods were burned before they were loaded 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. O. 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 ment. According to McGillen's testimony, establishing that prior to the shipment in | said Matson, the plaintiff's employee, from to establish such limited liability, and to show that the loss fell within such limitation. Pittsburgh, C. & St. L. R. Co. v. Barrett, 36 Ohio St. 448. A bill of lading for cotton exempted from loss by fire. It was held that where the cotton was burned, the burden of proving that there was no negligence was upon the carrier. Swindler v. Hilliard, 2 Rich. L. 286. The court said: "They were bound to show not only that the cotton was destroyed by fire, but the circumstances under which the destruction took place." Cotton was burned. The bill of lading exempted from liability for loss by fire. It was held that the burden of proof as to absence of negligence was on the carrier. Texas & P. R. Co. v. Richmond, 94 Tex. 571, 63 S. W. 619, reversing Tex. Civ. App. 61 S. W. 410. The court said: "The law does not require a railroad company, in defending itself under such a contract, to exclude the possibility that the fire occurred from some cause connected with the management of its railroad, nor in fact to exclude the possibility of negli gence on the part of its servants. The burden of proof means in this case, as in others, that there must be sufficient evidence introduced to justify a jury in finding a verdict in favor of the party who affirms the issue." In Fire Asso. of Philadelphia v. Loeb, 25 Tex. Civ. App. 24, 59 S. W. 617, the bill of lading exempted from liability for loss by fire, and also provided that in case of fire the burden of proof as to the negligence would be on the shipper. It was held that the plaintiff, having proved that the fire was caused by a defective spark arrester, made a prima facie case of negligence, and the carrier failed to show that the engine was properly handled or that the fire was not set out by its negligence. The court said: "The plaintiff had the burden of proof to show the negligence of the company, and sustained it by showing that the fire was set out by sparks from the engine. So the provision in the bill of lading was complied with, whether it was such as could have been enforced by law or not." one Patient, an ex-employee of the plaintiff, Where the contract provided exemption In Childs v. Little Miami R. Co. 1 Cin. Sup. Ct. Rep. 480, cotton was burned on a side track. The defendant denied that the loss was not among the exemptions in the bill of lading, and also denied all negligence. It was held that the burden of proof was on the plaintiff, who alleged it in the petition. In United States Exp. Co. v. Bachman, 2 Cin. Sup. Ct. Rep. 251, it was said that this case, so far as it fails to conform to the decision in Graham v. Davis, 4 Ohio St. 374, 62 Am. Dec. 285, is imperfectly reported. c. Live stock. 1. Generally. A contract under which horses were carried excepted liability for fire when not caused by negligence of the carrier. It was held that the burden of proof was on the carrier to show want of negligence. Texas & P. R. Co. v. Dishman, 38 Tex. Civ. App. 277, 85 S. W. 319. It was A shipping contract provided that the That case was distinguished in Bartlett horses, finishing about 9 P. M., after which he went to the village for lunch; and that about half an hour or more thereafter the car was discovered to be on fire, and the horses destroyed. Testimony was offered that the value of the "horses was $225 each. On cross-examination Matson testified that on the afternoon of the same day he signed the contract, a copy of which was attached to the answer; the original being offered in evidence by the defendant and received. There was also evidence tending to show that Patient was at the car while the loading was being done; that he purchased a lantern on the night of the fire, and was then intoxicated; that he had the lighted lantern that night at about 8 or 9 o'clock; and that someone was burned to death in A mare was injured on the cars and died. It was held that, upon a showing made by plaintiffs that the mare was injured while in the custody of the carrier, the burden was on the carrier to show that the injury happened without fault on its part, or from a cause excepted in the contract. Alabama G. S. R. Co. v. Gewin, 5 Ala. App. 584, 59 So. 553. And where the carrier was in exclusive control of stock, the shipper not having accompanied it, and a mare died shortly after delivery, it was held that where the evidence showed that the mare died for want of food and water, this was a sufficient prima facie showing of negligence, casting the burden of proof on the carrier to overcome the prima facie case. Mering v. Southern P. Co. 161 Cal. 297, 119 Pac. 80. The bill of lading exempted from liability except for gross negligence. The shipper signed a limited liability live stock contract, providing exemption from loss on account of delay, beyond the expense of feed and water. It was held incumbent on the carrier to prove that the shipper assented to the terms of the contract. Shoot v. Cleveland, C. C. & St. L. R. Co. 145 Ill. App. 532. Proof of delivery to the carrier of live stock in good condition, and its injury while in the custody of the carrier, was held to make a prima facie case. The car rier could have successfully rebutted the prima facie case against it, by proof that it had provided all suitable means of transportation, and had exercised that degree of care which the nature of the property required. If an animal escaped from the carrier, the co-operating cause of the escape would be presumed to have been the negligence of the carrier, unless it was relieved by proof to the contrary or by the terms of the contract. Baltimore & O. S. W. R. Co. v. Fox, 113 Ill. App. 180. Where the shipper of live stock proved the delivery to the carrier and the fact that damage occurred during transit by reason of the bumping of cars, it was held that the burden was then on the carrier to show that the loss was not occasioned by the car. Save as above stated, the record contains no evidence as to the origin of the fire. Other material evidence was received, bearing upon questions other than the first two to be discussed, and will be stated later in its proper connection. It is conceded that the plaintiff, although not the owner of the horses, had the right, as consignee thereof, to sue to recover damages for their injury and destruction, and this unquestionably is the law. Grinnell-Collins Co. v. Illinois C. R. Co. (Grinnell-Collins Co. v. Chicago, M. & St. P. R. Co.) 109 Minn. 513, 26 L.R.A. (N.S.) 437, 124 N. W. 377. 1. The effect of the court's charge was to permit a recovery without proof of negligence, and the defendant, predicating its his default, but was due to the inherent nature or propensity or "proper vice" of the animal transported. Boehl v. Chicago, M. & St. P. R. Co. 44 Minn. 191, 46 N. W. 333. The court said: "So, in this case the burden was upon the plaintiff to establish by a preponderance of evidence that the animal was thrown down or injured by the violent collision of the cars as alleged, and this unexplained would make a prima facie case of negligence, and it would then devolve on the defendant, as a common carrier, to disprove its negligence." The issue being made as to the specific charge of negligence, the clause of the contract limiting the carrier's liability was considered as eliminated from the case. In Lindsley v. Chicago, M. & St. P. R. Co. 36 Minn. 539, 1 Am. St. Rep. 692, 33 N. W. 7, where a lot of hogs died on the cars, and the carrier had exclusive care, it was said: "In general, although the rule that the carrier is absolutely responsible as an insurer of the property is subject to some exceptions, as in cases where the injury or loss is to be referred to the act of God or the violence of public enemies, yet the burden of proof, as respects the cause of loss or injury, is, even in such cases, upon the carrier, who, to exonerate himself from liability, must show that the cause of the loss was of the exceptional kind which the law recognizes as excusing him." Some cattle were injured and some were missing. It was held incumbent on the carrier to show that it was exempt from liability by reason of risks assumed by the shipper, and it was also held that the burden of proof was on the carrier to show that none of the injury complained of was caused by its negligence. Kansas City, M. & B. R. Co. v. Heard, 87 Miss. 378, 39 So. 1011. And the burden was held to be on a carrier relying on a contract stipulating for a restricted liability, to prove it, if it was not proved by the other party, and to show that the injury complained of resulted without fault on the part of the carrier, from some cause excepted by the contract. Chicago, St. L. & N. Ô. R. Co. v. Abels, 60 contract for the transportation of the horses, and that the written one was valid and binding upon the plaintiff in accordance with its terms. At common law the defendant was an insurer of the property, and in the absence of an express contract, leaving out of account the question of contributory negligence, the plaintiff was entitled as a matter of law to recover the value of the property destroyed without proving negligence on the part of the defendant; and even if there was an express contract, which we now assume as above stated, no duty devolved upon the plaintiff to plead it, it being his right and privilege to do just what he did, that is, to base his action upon the defendant's common-law liability, and leave claims upon a stipulation contained in the special contract mentioned, contends that such was reversible error, for the reason that under the contract the plaintiff was bound to prove the defendant's negligence; the provision thereof relied upon in this connection being that "the company shall not be liable for delay in transit or for the loss of, death of, or injuries to the stock, unless the same is caused by the negligence of the company, its agents or employees." For the purpose of the discussion of this point, and also for all other matters considered in this opinion, we will assume, notwithstanding the plaintiff's contention to the contrary, that the answer was sufficient. We will also assume, for the purposes of the present inquiry, that there was no oral 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 neglect." In this case the shipper had assumed all risk. In Louisville, M. O. & T. R. Co. v. Bigger, 66 Miss. 319, 6 So. 234, a mule was injured. The court left the special contract out of view, and held that the burden was on the carrier to acquit itself, which was done. Sheep were injured by delay and storm. The jury were instructed that if the evidence did not show that the sheep died or were injured from inherent want of vitality, or from injuries inflicted on each other, the carrier would be liable unless it proved that the injury was occasioned by some othel cause than its negligence, and in the absence of such proof the law would presume negligence on the part of the carrier. Nelson v. Great Northern R. Co. 28 Mont. 297, 72 Pac. 642. The agent of the shipper accompanied the stock, but the shipper declared on common-law liability. The exceptions to common-law liability were to be proved by the carrier, and, if the presence of the agent of the shipper prevented the defendant from discharging its duties, the burden of proving this was on the defendant. A shipper of live stock agreed to exempt the carrier from all claim for loss except that caused by the negligence of the carrier. It was held that the burden was on the carrier to show that the loss was not caused by its negligence. Davis Bros. v. Blue Ridge R. Co. 81 S. C. 466, 62 S. E. 856. A shipping contract for cattle provided that, for damage through negligence, the value by the schedule of $75 each should control; that in case of negligent delay the damage should be the value of food and water purchased by the shipper while so detained. An unusual delay having been proved, it was held that it devolved upon the defendant to show that the delay was from a cause for which it was not responsible. It was held that the carrier could not exempt itself from negligence of its servants. Bosley v. Baltimore & O. R. Co. 54 W. Va. 563, 66 L.R.A. 871, 46 S. E. 613. The court said that the later decisions do not regard the case of Baltimore & O. R. Co. v. Rathbone, 1 W. Va. 87, 88 Am. Dec. 664, as the law of the state. A carload of jacks was shipped under a contract exempting from liability for loss from burning of hay, straw, or material used by the owner. It was held that plaintiffs having shown the burning and the damages and the absence of the negligence of their employees, a prima facie case was made against the carrier, and on failure to rebut it plaintiff's should recover. St. Louis & S. F. R. Co. v. Parmer, Tex. Civ. App. 30 S. W. 1109. A carrier was not to be liable for injuries to live stock "by reason of any inherent vice" "or disposition to hurt each other." It was held that the burden was on the carrier to show that the injury arose from this cause. Ft. Worth & D. C. R. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834. A live stock contract provided that the 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 ownerrefuse 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 courtney v. American Exp. Co. 144 Iowa, 342, 115 said: "But in a case against a common carrier, like the one at bar, where the defendant is liable unless he proves that the injury was occasioned by a cause which, under the principles above, he is exempt from, it has no application." Wallingford | shipper would not go with live stock al N. W. 212, 122 N. W. 957, distinguished in And where it was understood that the |