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it to the defendant to allege any special, same rule has also been laid down in Bartcontract attempting to limit its liability. lett v. Oregon R. & Nav. Co. 57 Wash. 16, It is true that the cases are in conflict upon | 135 Am. St. Rep. 959, 106 Pac. 487, decided this proposition; but the later, and in our in 1910, and also in Nelson v. Great opinion the better, considered cases, decided Northern R. Co. 28 Mont. 297, 72 Pac. 642, under the more liberal modern practice, where it is said: “We are aware that the sustain the view announced. In 6 Cyc. 514, decisions on this question are somewhat at it is stated that “the better rule is that the variance, but believe the better rule to be special contract containing conditions in that the existence of a special contract for favor of the carrier is properly a defensive the shipment of live stock, with stipulations weapon, to be used by the carrier when therein exempting the carrier from certain sued, and that the shipper may disregard liabilities, is no obstacle to the maintenance it, and sue for breach of common-law duty." of an action in tort, based upon the violaThis seems to be the rule in the Federal tions of the carrier's common-law liabilities, courts. See Southern P. Co. v. Arnett, and that the plaintiff has an election to 50 C. C. A. 17, 111 Fed. 849, approved in bring his action on the contract or in tort Empire State Cattle Co. v. Atchison, T. & for damages arising from a violation of the S. F. R. Co. (C. C.) 129 Fed. 480. The carrier's duties." To the same effect, see though he had agreed to go, it was held, common-law liability, and a mule sound that the presumption of negligence existed when shipped arrived at its destination in. where the stock was injured. Louisville & jured by cuts, wounds, or bruises, it was N. R. Co. v. McCarty, 9 Ky. L. Rep. 683; held that, although the shipper had agreed Cincinnati, N. 0. & T. P. R. Co. v. Kern, to accompany the stock, the burden of proof 15 Ky. L. Rep. 656.

was on the carrier to show absence of negli. And where the shipper was not in actual gence. St. Louis & S. F. R. Co. v. Brosius, charge of live stock, although he had agreed 47 Tex. Civ. App. 647, 105 S. W. 1131. to take charge, and the stock was injured, But it was held that where an animal arit was held that the carrier was prima facie rived sick with pneumonia, the presumption liable. Louisville & N. R. Co. v. Spalding, of negligence would not apply. 8 Ky. L. Rep. 355.

And in Weed v. International & G. X. R. And where live stock was injured, it was Co. 21 Tex. Civ. App. 689, 53 S. W. 356, held that the presumption was that the it was held that the burden of proof was on carrier was negligent, unless the owner the owner of horses to show negligence of agreed to accompany the stock and did so. the carrier, where it was claimed that the Then the burden of proof would be on the horses contracted pneumonia from water owner, as, having care of the stock, he leaking from water tanks. The case does would be presumed to know how the injury not show a special contract, and does not occurred. Louisville & N. R. Co. v. Hawley, show that the sickness was caused by the 10 Ky. L. Rep. 117.

leaking water. The court said: “We have The exemption in a contract applied to no means of knowing whether the condition such injuries as were not occasioned by the of the water or the leakage of the tanks, negligence of the carrier's servants. Where or either, produced the pneumonia and ca

tarrhal fever." the carrier claimed that delay in delivering live stock was due to a mob, the burden of

The statements in the contract as to the showing that the mob was without fault of character and condition of the car were held the carrier was held to be upon the carrier. sufficient, and to place on plaintiff the bur

to be admissions that it was suitable and Louisville & N. R. Co. v. Thompson, 13 Ky. den of showing that it was unsafe and unL. Rep. 973.

suitable. In Patterson v. Missouri, K. & T. R. Co. show that the carrier performed its duty,

These admissions prima facie 24 Okla. 747, 104 Pac. 31, hogs died in the One of a carload of mules was injured.

Cold water had been poured on them Western R. Co. v. Harwell, 91 Ala. 340, 8 while they were in a heated condition. The So. 649. The court said: "Ordinarily, the shipper agreed by the bill of lading to ac

rule as to the burden of proof is thus statcompany the stock, but did not. The car- ed in general terms: The onus is primarily rier set up the contract limiting the com

on the defendant to show that the injury mon-law liability, and voluntarily assumed did not result from negligence on its part

, the burden of proof on the question of neg. and the cause thereof was in the terms of ligence.

the exception. The rule, however, should Cattle were injured on the cars, the floors not be rigidly applied. That injury was not of which were defective. The contract pro caused by neglect on the part of the car: vided that no recovery for injury could be rier, and that it was within the terms of had unless notice in writing was given be the exception, are relative propositions. fore the stock was unloaded. It was held | The rule, accurately and reasonably inter: that the carrier should show that the in- preted, does not mean that the carrier must jury wa not caused by the breakage. Ohio stablish both of these propositions inde. & Á. R. Co. v. Tabor, 98 Ky. 503, 34 L.R.A. pendently of each other. When the carrier 685, 32 S. W. 168, 36 S. W. 18.

makes a prima facie showing that the inWhere the contract limited the carrier's l jury occurred without negligence on his


Southern R. Co. v. Webb, 143 Ala. 304, 111/fendant to negative the same? We do not Am. St. Rep. 45, 39 So. 262, 5 Ann. Cas. 97. consider this an open question. “If the This conclusion is in logical accord with the goods were shipped under a special contract proposition stated in the next subdivision exempting the carrier from its common-law of this opinion, and indeed this court has liability," says Mr. Dunnell in § 1360 of already practically aligned itself with his Minnesota Digest, "the burden is still those adhering to the rule as above stated. on the carrier to prove, not only that the See Minneapolis, St. P. & S. Ste. M. R. Co. loss or damage was within the terms of the v. Home Ins. Co. 64 Minn. 61, 66, 66 N. W. exemption, but also that there was no negli132.

gence on its part.” This proposition is sup2. The question, then, on this branch of ported by the cases cited thereto, of which the case, resolves itself into one of burden see, especially, Minneapolis, St. P. & S. of proof, and may thus be stated: Did the Ste. M. R. Co. v. Home Ins. Co. supra; existence of the special contract limiting and there are numerous authorities from the defendant's liability to losses occurring other states to the same effect, of which through its negligence cast upon the plain- see St. Louis, I. M. & S. R. Co. v. Pape, tiff the burden of proving that the loss was 100 Ark. 269, 140 S. W. 265, 269. so caused, or was the burden upon the de- It may be contended that the introduction part, this prima facie brings its cause with. , negligence on its part. South & North Ala. in the exception."

R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep.

578. In this case the owner of the stock 2. Where shipper is in charge.

shipped agreed to assume care of the stock,

and to feed and water the same. A steer The shipper by the bill of lading assumed died in transit. the care and risk of a carload of horses. It A shipper of live stock agreed to accomwas held that the burden of proof was on pany the same and assume charge of loadthe carrier to show that it was not negli- ing. S. C. Stat. 1893, § 1678, provided that gent. Hull v. Chicago, St. P. M. & O. R. Co. no railroad company in transportation of 41 Minn. 510, 5 L.R.A. 587, 16 Am. St. animals shall overload the cars. It was Rep. 722, 43 N. W. 391. The train bucked held that the burden of proving that injury snowdrifts. The court said the carrier must to the stock was within an exemption prove that the loss occurred by reason of clause, and that the carrier was not neglian excepted cause. "If the contract, instead gent, was upon the carrier. Crawford v. of specifying certain exceptions to the lia Southern R. Co. 56 S. C. 136, 34 S. E. 80. bility, is general in its terms, and excepts But in Texas & P. R. Co. v. Arnold, 16 from the liability all causes of loss or dam. Tex. Civ. App. 74, 40 S. W. 829, where the age but the carrier's negligence, how does shipper of live stock agreed to take care of the carrier show that the loss or damage the same, and did accompany them, it was was within the exception but by proof that held that the burden was on the shipper to it occurred from a cause other than his neg. show negligence of the carrier in failing to ligence."

feed and water. The court said: “But in Hogs were shipped, the owner agreeing to shipments of live stock, where the owner accompany the stock, and releasing the car accompanies the stock under a special conrier from all damages which were not tract to take care of them himself, and is caused by the negligence of the carrier. given an opportunity to do so, the reason for Some four hogs died. It was held that, as | the rule that the facts are peculiarly, if not the carrier failed to negative negligence by exclusively, within the knowledge of the proof, the plaintiffs were entitled to judg. carrier, does not apply, and hence the rule ment in some amount. Johnstone v. Rich itself is held to be inapplicable.” mond & D. R. Co. 39 S. C. 55, 17 S. E. 512. That case was distinguished in Texas &

The court followed Hart v. Pennsylvania P. R. Co. v. Dishman, 38 Tex. Civ. App. 277,
R. Co. 112 U. S. 331, 28 L. ed. 717, 5 Sup. 85 S. W. 319.
Ct. Rep. 151, as to valuation.
Cattle and hogs were in a car, and the

II. Burden on shipper.
cattle were injured and some hogs were lost.
The contract required the shipper to care

a. Generally. for the stock, and exempted the carrier ex. cept for gross negligence. It was held that Where goods are damaged while in the the burden of proof was on the carrier to possession of the carrier, it is required to show that the loss occurred from an ex- show that such injury came from an exceptcepted cause, and that it was not negligent. ed cause. The majority of cases hold that Johnson v. Alabama & V. R. Co. 69 Miss. then the burden of proof is on the shipper 191, 30 Am. St. Rep. 534, 11 So. 104. to show that the damage was caused by the

Where a special contract was made and negligence of the carrier. a loss occurred, it was held that the car. In an action against a steamship comrier could not claim exemption from liabil. pany for loss of money shipped by express ity unless he showed, not only that the on a steamer which burned, it was held cause of the loss was within the limitation that, the carriers having succeeded in reof the contract, but that it was without I stricting their liability as carriers by spe.


of the special contract in evidence before it to establish the absence of negligence on the plaintiff had rested changed the rule, its part. Furthermore, the evidence in or rather rendered it inapplicable. No such question seems to have been offered upon result followed, however, as this was done the issue of contributory negligence, which by the defendant, and the plaintiff, during was submitted to the jury, and of which the entire trial, based his claim to a recov- we will treat in its place. But if it may be ery solely upon the common-law liability. claimed that the conclusions above stated This distinction is clearly pointed out in are erroneous, the same result must neverJohnson v. West Jersey & S. R. Co. 78 N. J. theless follow, for the settled case shows L. 529, 138 Am. St. Rep. 625, 74 Atl. 496, that most of the evidence relative to the 20 Ann. Cas. 228.

cause of the fire and responsibility thereThe only evidence disclosed by the record for is not contained therein. Error is never as to the origin of the fire was that above presumed, and what this evidence was we recited concerning the man Patient and his know not. conduct, and this we think was manifestly We hold, therefore, that the verdict caninsufficient to require the court to submit not be disturbed on the ground that the into the jury the question of whether the structions allowed a recovery without proof defendant had sustained the burden upon 'of negligence. A new trial should never be cial agreement, the burden of proof that After the damage to goods had been esthe loss was occasioned by the want of due tablished, it was held that the burden was care or by gross negligence was on the libel- on the carrier to show that it was lant. New Jersey Steam Nav. Co. v. Mer- casioned by one of the exempted perils. chants’ Bank, 6 How. 344, 12 L. ed. 465. When this was done, the burden was shiftThe carriers gave notice in bills of lading ed on the shipper to show that the damage that the expressman was alone responsible, might have been avoided by the exercise of and that the steamboat company assumed reasonable care on the part of the carno risk.

rier. Mitchell v. United States Exp. Co. That case and Selby v. Wilmington & W. 46 Iowa, 214. R. Co. 113 N. C. 588, 37 Am., St. Rep. 635, And where the express company's receipt 18 S. E. 88, were distinguished in Mitchell stipulated for exemption from liability bev. Carolina C. R. Co. 124 N. C. 236, 44 yond $50, for losses occurring through its L.R.A. 515, 32 S. E. 671.

negligence, it was held that negligence was And where the carrier proved that gold to be proved affirmatively by the plaintiff. coin was stolen before leaving port, by a Magnin v. Dinsmore, 56 N. Y. 168, distinperson not belonging to the ship, and the guished in Alabama G. S. R. Co. v. Little, bill of lading excepted loss occasioned by 71 Ala. 611. “thieves," it was held that the burden of And where a shipper was held bound by proof was on the libellants to prove that the the valuation fixed in an express receipt, it loss might have been avoided by the exercise was held that the company was not bound of reasonable and proper care on the part to inquire as to the true value; that the of the ship. The Saratoga, 20 Fed. 869. burden of bringing to the shipper notice of The ship was held negligent in not securing the change of common-law liability was on the hold with proper lock, and also in not the carrier, but that when that was preventing this man from carrying such a tablished the burden of proving negligence heavy load of coin in daylight from the in the carrier was on the shipper. Kallman ship.

v. United States Exp. Co. 3 Kan. 205. The burden of proof was held to be, first, In Adams Exp. Co. v. Loeb, 7 Bush. 499. on the carrier to show that the damage was where a contract with an express company occasioned by one of the excepted causes; provided that they were forwarders only, then, the burden of proof was held to be on and should be liable only for fraud or gross the shipper to show negligence of the car- negligence, it was held that in an action rier. Turner v. The Black Warrior, 1 Mc- to recover for lost goods, not delivered in All. 181, Fed. Cas. No. 14,253; The Rocket, New York, the burden was on the plaintiff 1 Biss. 354, Fed. Cas. No. 11,975.

to show such fraud or negligence. In Western Transp. Co. v. Newhall, 24 A bill of lading provided, “Nor shall neg. Ill. 466, 76 Am. Dec. 760, it was said that ligence be presumed against any carrier." "we understand the law to be that when It was held that the burden of proof was goods are received by a common carrier, to upon the shipper to show that injury ocbe carried under the usual bill of lading, curred, and that negligence caused the init is incumbent on him to show that the jury. Merchants' & M. Transp. Co. v. Eichinjury resulted from one of the causes ex- berg, 109 Md. 211, 130 Am. St. Rep. 524, cepted in it. In this case the defendants 71 Atl. 993. A shipment of paper bags was were bound to show that the injury was damaged. caused by the weather, accidental delays, A special contract exempted the defendor by the natural tendency of the powder ant from liability on account of delay. It to decay, neither of which was shown. Had was held that the burden of proving neglithat been shown, then the burden of proof gence of the carrier was upon the shipper. would have been shifted on the plaintiff Anderson v. Atchison, T. & S. F. R. Co. 93 to prove negligence, but not until then.” Mo. App. 677, 67 S. W. 707. The evidence



granted in a civil action for errors in in- of limited liability, to the same extent as if structions, however egregious they may be, the plaintiff himself had executed it. It where the verdict was the only one war- must also be conceded on this branch of ranted by the law applicable to the case. the case that the necessary preliminary Dunnell's Dig. $ 7170.

steps to establish the tariff specified in the 3. The special contract contained a pro- contract, and also others, had been taken. vision to the effect that the shipper declared Unless, therefore, it conclusively appeared that the value of the horses did not exceed from the evidence that this contract was $100 each, the shipper agreeing to pay for invalid by reason of the circumstances the carriage at the published rate appli- under which it was entered into, then the cable to shipments of live stock value at verdict cannot stand, and there must be a not more than the sum stated. The de- new trial; for the instructions in effect took fendant insists that this

valid | the special contract out of the case, and limitation of its liability as to amount, and left only the right to recover at common that in no event could the plaintiff recover law. a greater sum. For the purposes of dis- These circumstances are practically uncussion we will assume that Matson had disputed, and we will state them as favorauthority to bind the plaintiff by a contract 'ably to the defendant as the testimony will of delay was sufficient to raise the presump powering cause, it is charged that his neg. tion of negligence.

ligence contributed to the loss, the proof In Kirby v. Adams Exp. Co. 2 Mo. App. of this must come from those who assert 369, where a trunk was lost, the cases of or rely on it.” Levering v. Union Transp. & Ins. Co. 42 The following cases hold that, before the Mo. 88, 97 Am. Dec. 320, and Ketchum v. shipper is required to prove the negligence American Merchants' Union Exp. Co. 52 Mo. of the carrier, it is incumbent on the latter 391, were followed as to the burden being on to bring the injury within the exemption the carrier to show want of negligence, of the bill of lading: Vonfiglio v. Lake where the contract exempted from liability Shore & M. S. R. Čo. 125_ Mich. 476, 84 except for gross negligence. These cases, on N. W. 722; Baltimore & O. R. Co. v. Brady, which the Kirby Case relied, were overruled 32 Md. 333; Toledo, W. & W. R. Co. v. in Witting v. St. Louis & S. F. R. Co. 101 Hamilton, 76 Ill. 393; Mahaffey v. WisconMo. 631, 10 L.R.A. 602, 20. Am. St. Rep. sin C. R. Co. 147 Ill. App. 43. 636, 14 S. W. 743.

The burden of proof was held to be on In Canfield v. Baltimore & O. R. Co. 93 the carrier to show that the whole of the N. Y. 532, 45 Am. Rep. 268, the court said: | damage to the cargo came from the except"When the liability of a party is predicated ed cause, exempting from liability, in the upon his negligence in the performance of bill of lading. If it failed to show the exa duty which rests upon him by virtue of tent and degree of this exoneration, it would a contract or otherwise, the burden is al be held liable for all the damage. Speyer ways upon the plaintiff to establish the fact v. The Mary Belle Roberts, 2 Sawy. 1, Fed. of negligence to the satisfaction of the Cas. No. 13,240. jury.”

After damage was established it was held Velours were shipped, the bill of lading that the burden was on the ship to show exempting the carrier from liability for that it occasioned by perils that "wet.” It was held that the burden of proof exempted from liability in the bill of lading. as to negligence of the carrier was on the The Keokuk, 1 Biss. 522, Fed. Cas. No. shipper, and that evidence that the goods 7,721. were shipped in good order and were not The burden of proof was held to be on delivered in the usual time, and that they the carrier to show that a cargo of sugar were wet when delivered, was not proof of was damaged by reason of the causes exnegligence. Dobson v. Central R. Co. 38 cepted in the bill of lading. Argo S. S. Co. Misc. 582, 78 N. Y. Supp. 82.

v. Seago, 42 C. C. A. 128, 101 Fed. 999. A lot of rails were shipped by boat, 88 The evidence of the carrier was to the extent tons to one person and 180 tons to another. that there was no damage at all. At delivery one consignee received 20 tons And where the evidence of the carrier less than billed, and the other 8 tons more. failed to show that the loss and damage to The bill of lading provided, “Vessels not a cargo of tea came from a cause excepted accountable for number of pieces or weight.” in the bill of lading, it was held that the It was held that where the consignee had carrier would be liable. The Mascotte, 48 undertaken to separate the lot at delivery, Fed. 119. On appeal it was held: "The and ship it on cars, the burden was on him burden of proof is on the steamship to overto show negligence on the part of the ship. come the effect of the acknowledgment in Eaton v. Neumark, 37 Fed. 375.

the bill of lading of the reception of the In Memphis & C. R. Co. v. Reeves, 10 goods on board 'in good order and conWall. 176, 19 L, ed. 909, where it was held dition.' ” 2 C. C. A. 399, 1 U. S. App. 251, that a carrier was not liable for damages | 51 Fed. 605. from sudden flood caused by act of God, the The onus was held to be on the master court said: "If, after he has excused him. ; (whether he reshipped the goods or not) to self by showing the presence of the over- I show that the goods were lost, or so in


warrant: Previously to the execution of, tract and said, "You know what this is for; the contract there was no conversation be- you got to get release to ride with them;" tween Matson and the defendant's agent and that Matson replied, "I know all about concerning the kind or value of the horses it; I signed good many of them;" and on to be shipped; nor was there any talk about cross-examination the agent admitted havfreight rates, tariffs, or charges to be made ing said to Matson that he would have “to for the transportation, and nothing was release the stock in order to go with the said about any other paper or contract. stock.” It is clear, also, that Matson's According to the testimony of the agent, his purpose in executing the contract was to only thought seems to have been to secure secure the right to accompany the stock. the execution of a contract covering the There was, in short, a total absence of the shipment, and there was nothing even in usual conversation necessarily had between the nature of a meeting of minds upon the parties preliminary to the execution of a particular contract here involved. The written contract, and of consensus concernagent testified that he requested Matson to ing the subject-matter. come into the station and fix out the con- It is true that a meeting of minds is tract,-not a contract,—and that when he usually presumed from the execution of a came in he (the agent) prepared the con. I written instrument, but here all the surjured as to prevent delivery, by the un- , ligence of the carrier. On evidence of the avoidable accidents of the river. Dunseth shipping of the goods and their destruction v. Wade, 3 Ill. 285. The bill of lading au- by fire while in possession of the carrier, thorized the carrier to reship on “any good it was held that the court properly directboat." It reshipped and the goods were ed a verdict for the defendant in the ablost.

sence of any evidence of negligence. Mib. Fire,

chaels v. Adams Exp. Co. 71 N. J. L. 41,

59 Atl. 142. The weight of authority is that where the An express bill of lading exempted for bill of lading exempts for loss by fire, the loss from fire unless caused by fraud or shipper has the burden of proof to establish gross negligence of the carrier. It was held that the fire was caused by the negligence that where the goods were burned, the burof the carrier.

den of proving that the loss was caused by By a bill of lading for cotton the carrier reason of the fraud or gross negligence of was exempted from liability for loss by fire the defendant was on the plaintiff. Lands"unless the same be proved to have oc- berg v. Dinsmore, 4 Daly, 490. curred from the fraud or gross negligence A fire department extinguished a fire on of the company or companies, their agents a tug, but destroyed the cargo. The bill or servants.” It was held that the burden of lading contained the usual exemptions was on the plaintiff to establish that the from fire risk. It was held that the burcotton was burned by the fraud or gross den of proof was on the shipper to show negligence of the carrier. Platt v. Rich- that the fire was the result of negligence. mond, Y. R. & C. R. Co. 108 N. Y. 358, 15 The Buckeye, 7 Biss. 23, Fed. Cas. No. N. E. 393.

2,084. The cause of the fire was unknown. And where the bill of lading provided A bill of lading exempted for loss by no liability for fire unless from gross neg. fire. The freight was destroyed by a mob ligence, it was held that the burden of proof firing the same. It was held that the buras to negligence in such a case was on the den of proof was on the owners of the plaintiff. Cochrane v. Dinsmore, 49 N. Y. freight to show that the loss was caused 249. Church, Ch. J., said: “It cannot be by the negligence of the carrier. Wertsaid, as a matter of law, that the fact of heimer v. Pennsylvania R. Co. 17 Blatchf. the burning of the ship, and the fact that 421, 1 Fed. 232. the witnesses called could not account for Cotton was in possession of a railroad, it and the other circumstances, absolutely at a compress company plant, the bill of established negligence. The most that can lading exempted the railroad from liability be said is that these facts were competent for fire. It was held that, after the damto found an inference of a want of care." | age to goods was established, the burden

And where the bill of lading exempted was on the carrier to show that it was for loss by fire unless it occurred through exempted by the bill of lading. But then the negligence of the carrier, it was held the burden would be on the plaintiff to that proof by the carrier that the loss oc- establish negligence of the defendant. Cau curred through the excepted peril consti- v. Texas & P. R. Co. 194 U. S. 427, 48 L. tuted prima facie a complete defense. The ed. 1053, 24 Sup. Ct. Rep. 663, 16 Am. Neg. burden of proving negligence of the carrier Rep. 659, affirming 51 C. C. A. 76, 113 was held to be on the owner. Schaller v. Fed. 91. Chicago & N. W. R. Co. 97 Wis. 31, 71 N. And the burden of showing that loss by W. 1042.

fire, caused to a shipment of flour on the This was said to be the first ruling had wharf, was occasioned by the negligence of on this question in this state.

the carrier, was held to be on the shipper A bill of lading provided for exemption where such loss was excepted in the bill of from damage by fire unless caused by neg. I lading. Washburn-Crosby Co. v. William

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