Imágenes de páginas



no collision, no sudden jerking, and tiff had a prima facie case when he showed that the agents exercised proper care of the the receipt of the goods by the carrier, and stock. Georgia Southern & F. R. Co. v. then nondelivery, or delivery in a damaged Greer, 2 Ga. App. 516, 58 S. E. 782. The condition. Any further defense would be shipper loaded the cattle and some were in the nature of confession and avoidance. dead when they arrived at their destination, Parker v. Atlantic Coast Line R. Co. 133 N. and the deaths were caused by overloading. C. 335, 63 L.R.A. 827, 45 S. E. 658.

Virginia Code 1904, § 12941, provides that In Smith v. North Carolina R. Co. 64 N. whenever any property is received by a com- C. 235, a shipping contract exempted the mon carrier, loss or injury to it shall be carrier from liability for loss by fire. Cotprima facie evidence of the negligence of ton was burned. It was held that the plain. such common carrier. Southern Exp. Co. tiff had the burden of proving negligence on v. Jacobs, 109 Va. 27, 63 S. E. 17.

the part of the carrier. This case is not in After proof of loss or damage, it was held line with the subsequent cases in that state, that the burden of proof was on the carrier and the rule would be different under the to show that the damage was from an ex- act of 1897. The court followed the case empted cause, and also to show that the of New Jersey Steam Nav. Co. v. Merchants' injury was not due to its negligence. Mitch. Bank, 6 How. 344, 12 L. ed. 465, and said: ell v. Carolina C. R. Co. 124 N. C. 236, 44 "They may, by special contract, be relieved L.R.A. 515, 32 S. E. 671. In this case a from their peculiar liability as common car. mule died on the cars. This was on the riers,

when there is a special conground that where particular fact tract, the burden of proving the want of necessary to be proved rests peculiarly ordinary care, or, what is the same thing, within the knowledge of a party, upon him of proving negligence, is upon the owner.' rests the burden of proof. North Carolina In Mitchell v. Carolina C. R. Co. supra, Laws, 1897, chap. 46, provides that upon the court said, referring to the case of proof of injury to freight in the possession Smith v. North Carolina R. Co. supra, there or under the control of any railroad or the exemption claimed was special, being steamboat company it shall be presumed as to fire only. "The general principles that the injury was caused by the negligent were not elaborated, and the opinion was acts of said company's agents or servants. evidently based entirely on the particular The court said: “It is contended for the facts of the case.” The contract was proved defendant that it is exempted by this con- and it was shown that the cotton was de tract from all loss or damage not arising stroyed by fire. "This brought the loss from its own negligence, and that therefore, within the exception. What the court eviit cannot be required to prove the loss with- dently intended to say was that then the in the excepted classes without requiring it, burden of proving negligence rested on the in effect, to prove its own want of negli plaintiff.” gence.

Even so."
And the burden of proof was held to be

VII. Nebraska. on the carrier to show that an injury proved was within excepted causes, and that the In Atchison, T. & S. F. R. Co. v. Lawler, injury was caused in some way that would 40 Neb. 365, 58 N. W. 968, which held that relieve it from responsibility. Lyon v. At a contract limiting liability for fire was lantic Coast Line R. Co. 165 N. C. 143, 81 void, it was held that where property was S. E. 1. This case adopts the rule in Mit- delivered to the carrier, its failure to de chell v. Carolina C. R. Co. supra. The ex- liver raised the presumption of negligence, emptions were not given. If the bill of lad- and it devolved on it to overcome the preing exempted for all damage not caused by sumption by proof; and that it was not its negligence, the carrier would have to sufficient to show that the goods were de. prove that it was not negligent in order to stroyed by fire, but it must show that there take advantage of the exemption, according was no negligence on its part (following 2 to the Mitchell Case. Evidence of the dam- Greenleaf on Evidence, $ 219). aged condition of the goods made a prima Cattle were injured and some were killed facie case.

in transit. An instruction that if the cat. And where cattle were shipped, it was tle were in poor condition and some of them held that the plaintiff's case was made out died and others were injured without any when he had shown that the cattle were re- negligence on the part of the carrier, the ceived by the carrier, and not delivered, or plaintiff could not recover, but the burden delivered in a damaged condition. The bur- of proof was on the defendant to show den then was on the defendant to show a those facts by a preponderance of evidence, special contract and bring the injuries clear was held as favorable for defendant as the ly within the terms of its exemption. The evidence warranted. Ralston v. Union P. unreasonable detention was held to be evi- R. Co. 96 Neb. 199, 147 N. W. 478. The car. denee of negligence. Hinkle v. Southern R. rier claimed that the shipper agreed to send Co. 126 N. C. 932, 78 Am. St. Rep. 685, 36 a man, but failed to do so. S. E. 348.

that this did not change the rule. Watermelons were shipped “subject to de- A carrier furnished car improperly lay.” It was held that it was intended bedded for live stock, and delayed the train. to exempt the carrier from liability for The shipper agreed to go with and take care negligence, the clause would not be en- of the stock. His car of stock was left on forceable. It was also held that the plain-'the way without his knowledge, and be

It was held


went on further. The stock arrived in bad | case, where it was claimed that the plaincondition. The defendant pleaded certain tiff, who agreed to accompany hogs, failed facts as contributory negligence on the part to water them properly. It was held that of the shipper. It was held that such a the Constitution did not prohibit this kind pleading established the burden of proof of contract. The burden of proof was not and the carrier assumed the laboring oar. raised in either case, and it is probable that Allen v. Chicago, B. & Q. R. Co. 82 Neb. the prior case stated it with reference to 726, 23 L.R.A.(N.S.) 278, 118 N. W. 655. Indiana.

The shipper agreed to accompany and A shipper, in consideration of a reduced care for live stock. The carrier knew that rate, released the carrier from all liability no one accompanied the same. It was held over $5 a hundred pounds. It was held that the delivery of live stock to a carrier that the Nebraska Constitution prohibited in good order, and their arrival in bad or- a carrier from limiting its common-law lia. der, made a prima facie case, and it de- bility. Wabash R. Co. v. Sharpe, 76 Neb. volved on the carrier to show that the dam. 424, 124 Am. St. Rep. 823, 107 N. W. 758. age resulted from some cause which would The court said: “The delivery of the goods exempt it from liability. Chicago, B. & Q. to the carrier in good order, and their arR. Co. v. Slattery, 76 Neb. 721, 124 Am. rival at the place of destination in bad orSt. Rep. 825, 107 N. W. 1045, 20 Am. Neg. I der, makes a prima facie case against the Rep. 405.

carrier. It then devolves upon it to show Nebraska Const. art. 11, § 4, provides that the loss or damage was caused by the that "the liability of railroad corporations act of God or some other cause which would as common carriers shall never be limited." exempt it from liability.” These household Before this was adopted it was held that goods were held in freight yards too long the common law applied. Atchison & N. and destroyed by flood. R. Co. v. Washburn, 5 Neb. 117. Under this provision it was held that a carrier

VIII. Presumptions. could not limit its liability. St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, 22 L.R.A. As a rule, negligence of the carrier will 335, 4 Inters. Com. Rep. 494, 56 N. W. 957, be presumed where goods in his possession and Missouri P. R. Co. v. Vandeventer, 26 are shown to be damaged. The carrier is Neb. 222, 3 L.R.A. 129, 41 N. W. 998, where then required to show absence of negligence, it was claimed plaintiff could not recover or that he is excused by reason of the conbecause he had not given the notice required tract exempting liability for such cause. in the contract.

Then the shipper will be required to show In Union P. R. Co. v. Thompson, 75 Neb. negligence of the carrier, and that the exer464, 106 N. W. 598, and Cook v. Chicago, cise of reasonable diligence, skill, and care R. I. & P. R. Co. 78 Neb. 64, 110 N. W. would have prevented the injury. While 718, the defense that the contract required negligence is presumed from injury, the notice of damage to be given within ten cases in subdivision I. hold that the carrier days was held to violate the constitutional has to go farther than showing that the provision

damage arose from a cause specified in the In Pennsylvania Co. v. Kennard Glass & exemption, and prove that there was Paint Co. 59 Neb. 435, 81 N. W. 372, it was negligence on his part. But in most of the held that the Constitutional provision ap- cases in subdivision II. the presumption of plied.

negligence is met by showing that the carIn Miller v. Chicago, B. & Q. R. Co. 85 rier is exempt by the bill of lading. The Neb. 458, 123 N. W. 449, where a stallion shipper then has the burden of proof to eswas burned in a car and the carrier claimed tablish negligence. a released valuation, it was held that the A bill of lading exempted the carrier from contract was controlled by Neb. Const. art. loss by breakage or defective packages. A 11, § 4, providing: “The liability of rail. shipment of raisins arrived with broken road corporations as common carriers shall boxes and all had some raisins taken from never be limited.”

the boxes. It was held that the loss of In Chicago, B. & Q. R. Co. v. Williams, raisins from the boxes being shown, the 61 Neb. 608, 55 L.R.A. 289, 85 N. W. $32, presumption of law was that such loss was it was claimed that the damage to a stal- caused by the neglect of the carrier, and the lion was caused by the failure of plaintiff burden was on the latter to show that it to furnish an attendant, as he had agreed happened through the excepted cause. No to. This was held untenable, saying it was evidence was given to show that the raisins not supported by Terre Haute & L. R. Co. escaped of themselves or by leakage. The v. Sherwood, 132 Ind. 129, 17 L.R.A. 339, Bellona, 4 Ben. 503, Fed. Cas. No. 1,277. 32 Am. St. Rep. 239, 31 N. E. 781. "The And where the shipper failed to show that rule is not doubted that where the owner damage to macaroni arose from the perils is in charge of live stock in transit the bur- of the sea, and the macaroni was stowed in den is on him to show a loss caused by the the same compartment with green fruit, it carrier's negligence. This is the point de- was held that the inference was that the cided in the Indiana case.” The above damage was caused by bad stowage. The statement in the case of Chicago, B. & Q. Giava, 56 Fed. 243. R. Co. v. Williams, as to burden of proof, In Cumming v. The Barracouta, 40 Fed. is cited in Chicago, St. P. M. & 0. R. Co. v. 498 (reversing 39 Fed. 288), the onus was Schuldt, 66 Neb. 43, 92 N. W. 162, a similar held to be upon the steamer to show that



loss of a lot of chloride shipped in barrels | the carrier made no proof showing why the was caused by leakage, which was exempted goods had not arrived, the presumption was in the bill of lading. The court said: that there was an absence of reasonable “When goods in the custody of a common care from which the defendant could not carrier are lost or damaged, the presump- contract. Adams Exp. Co. v. Stettaners, 61 tion is that the loss was occasioned by his Il. 184, 14 Am. Rep. 57. default, and the burden is upon him to Glass was shipped by express at "owner's prove that it arose from a cause for which risk," the carrier to be liable for gross neg. he is not responsible.

If the evi- ligence. It was held that where goods, propdence is as consistent with the conclusion erly packed, were delivered to a carrier, that the loss arose from negligence, the li- their arrival in damaged condition rebellants are entitled to recover.” In this quired the carrier to explain the cause of case some of the barrels were broken, al injury if it was to escape the charge of though the ship witnesses testified they negligence. Rieser v. Metropolitan Exp. Co. were intact when put on lighters.

45 Misc. 632, 91 N. Y. Supp. 170. And where the bill of lading exempted A released rate was given for a piano, from the perils of the sea, it was held that and the carrier was released from common. proof of failure to deliver the goods in good law liability. When delivered it was found order threw the burden on the shipowner to be broken and of no value. It was held to show that the damage resulted from the that the burden of proof was on plaintiff, exempted peril. This would be prima facie but he was not required to point out the sufficient to bring the case within the excep. precise act or omission in which the neglition. If the proof showed that the damage gence consisted. The failure of the car. resulted from a sea peril, but did not show rier to show that it had taken such prethat the master had means to avoid the cautions as prudence would dictate, and peril, the libellant was held bound to show the failure to furnish proof, if any, which that the master had such means. The proof would be within its power, would subject of that and the damage was held to raise it to the inference that the precautions the presumption of negligence. The Shand, were omitted. Bowden v. Fargo, 2 Misc. 10 Ben. 294, Fed. Cas. No. 12,702.

551, 22 N. Y. Supp. 889, affirmed in 68 Hun, So there is a presumption of negligence 607, 22 N. Y. Supp. 890. The court said: against the carrier if the injury is not ex- Proof of the injury, as established by the plained.

evidence, is at least prima facie evidence A saw shipped by express was damaged of negligence on the part of the appellant, and a verdict of $475 was awarded. The and unless explained by it is sufficient to receipt limited loss to $50. It was held make it liable.” that as no account was given as to how the And where the express receipt stipulated injury occurred, a presumption of negli- that the carrier should not be charged for gence would follow. American Exp. Co. v. any loss or damage unless caused by fraud Sands, 55 Pa. 140.

or gross negligence, and that the plaintiff In Brown v. Adams Exp. Co. 15 W. Va. should be required to prove fraud or such 812, referring to American Exp. Co. v. negligence in order to be entitled to reSands, supra, and Clark v. Spence, 10 Watts, cover, proof of a delivery and acceptance 337, it was said: “But really, the Pennsyl. of the goods to be carried, and of a demand vania doctrine that the effect of a special for the goods and noncompliance with it

, contract is to convert the common carrier without any explanation, was held suffiinto a special bailee for hire, whose duties cient proof of fraud or gross negligence, unare to be governed by the contract, and til evidence of care had been given by the against whom, therefore, if negligence is defendants. Newstadt v. Adams, 5 Duer, charged, it must be proved by the party in- 43. jured, is not good law.”

A contract to carry pigs exempted the And where a phaeton was burned and the carrier from all liability for damage not bill of lading exempted for loss by fire, it caused by its wilful neglect or misconduct

. was held that the presumption was that the Some of the pigs were missing. It was held railroad was negligent where its employees that the failure to account for the missing refused to give the shipper any information pigs would be presumptive evidence of neg. as to the cause of the fire. Pennsylvania ligence. Curran v. Midland G. W. R. Co. R. Co. v. Miller, 87 Pa. 395.

[1896] 2 I. R. 183. This was on the ground And where a package of jewelry was lost of wilful misconduct; as the pigs belonged by an express company, and the liability by to the shipper, they continued to belong to the receipt fixed at $50, it was held that him, and the presumption was that they the failure by the carrier to account for were still in the possession of the carrier, the package raised the presumption of neg. after having been delivered to it and not ligence, and the limitation of the receipt accounted for. did not apply. Grogan v. Adams Exp. Co. It was claimed that the stipulation in the 114 Pa. 523, 60 Am. Rep. 360, 7 Atl. 134. receipt limiting the liability of the carrier

And where an express receipt stipulated made it a bailee for hire of carboys of acid, that liability should not exceed $50, it was and that negligence in breaking the same held that if it could be conceded that the must be shown by the party charging it. shipper assented to the bill of lading, the But it was held that when it was shown carrier would not be excused from the exer- that the carboys were in the control of the cise of reasonable and ordinary care. As railroad, and were broken in switching,

[ocr errors][merged small]

there would be reasonable evidence and an | proof was on the shipper to show negligence inference of negligence in the absence of of the carrier. Brewster v. New York C. any explanation, and the burden was thrown & H. R. R. Co. 145 App. Div. 51, 129 N. Y. upon the carrier to rebut that inference. Supp. 368. This was shown by the condiKirst v. Milwaukee L. S. & W. R. Co. 46 tion of the glass. The court said: “Proof Wis. 489, 1 N. W. 89.

of the nature of an accident may afford And there is held to be a presumption prima facie proof of negligence.' When arising from injury.

the box was opened after delivery the glass Stoves were shipped in a sealed car. The was broken. “If the glass was not broken contract stipulated that as they were frag- ; after its delivery to plaintiff, then the eviile and shipped at reduced rates the carrier dence is sufficient to make out a prima was released from liability for loss. The facie case of negligence, and to throw upon stoves were broken when delivered. It defendant the burden of proving that it was held that an instruction that the car- exercised due care." rier must show how the injury was occa- A bill of lading for tanks of glycerin sioned, implying that the defendant must provided exemption for leakage and breakprove the very circumstances to relieve him age. It was held that proof that the tank self of negligence, was error. Buck v. Penn- on delivery showed the effect of hard and sylvania R. Co. 150 Pa. 170, 30 Am. St. rough usage, caused by cases being shoved Rep. 800, 24 Atl. 678. The court said: against it, was sufficient to take the case "There can be no doubt that the fact of a to the jury. Koenigsheim v. Hamburg shipment in good order and a delivery in American Packet Co. 12 Daly, 123, 17 N. Y. bad order is evidence of negligence of itself, Week. Dig. 405. but it is evidence only, and must be con- And where damage was shown, it was sidered along with all the other evidence held that the presumption was that it was by the jury.'

caused by the carrier. Inman v. Seaboard In Phænix Clay Pot Works v. Pittsburgh Air Line R. Co. 159 Fed. 960. & L. E. R. Co. 139 Pa, 284, 20 Atl. 1058, The bill of lading for boxes of jewelry pots were shipped and properly packed and contained the clause "owner's risk.” It was protected in a car. The bill of lading pro held that proof of nondelivery, not exvided that the carrier would not be liable plained, made a prima facie case. Canfield for breakage, loss, or damage from any v. Baltimore & O. R. Co. 93 N. Y. 532, 45 cause not the result of collision or of cars | Am. Rep. 268. The court said: "Had it being thrown from the track while in tran not been for the rulings of the court below sit. On arriving at the destination the pots in the case we should have considered the were in another position and broken. The law to have been settled beyond controcourt said "in affirming defendants'

versy, that proof of the nondelivery of proppoint that no presumption of negligence on erty by a bailee upon demand, unexplained, the part of the carrier arises from the con makes out a prima facie case of negligence dition of the clay pots at the place of against such bailee in the care and custody delivery," the judge went to the verge of pro- of the thing bailed; and, in the absence of priety. "If the pots were carefully and se any evidence on his part, excusing such noncurely packed when delivered to the carrier, delivery, presents a question of fact as to and, when they reached their destination, the negligence of the bailee for the conwere found in the badly damaged condition sideration of the jury.” described by the witnesses, the only rea- A shipper took out a policy of insurance, sonable inference was that they were not but it was not to cover any common-law transported with ordinary care."

liability of the carrier. The bill of lading In Schaeffer v. Philadelphia & R. R, Co. provided for subrogation of the carrier to 168 Pa. 209, 47 Am. St. Rep. 884, 31 Atl. any insurance. On a loss the insurance 1088, where contractual limitation was dis- company advanced the owner money pendputed, to meet any defense based upon the ing the test of liability of the carrier, to be ground of a restricted contractual liability, returned if it was a common-law liability. the plaintiff assumed the burden of proving As negligence was a common-law liability, that the injuries to his mules resulted from it was no defense by the carrier that it negligence while the car was on defendant's should be subrogated. It was held that road. The court said: “Injury to the con- loss by fire raised the presumption of negli. tents of a car may, however, furnish ground gence. Gulf, C. & S. F. R. Co. v. Zimmerfor an inference of want of ordinary care man, 81 Tex, 605, 17 S. W. 239. in transportation.”

In St. Louis Southwestern R. Co. v. McPlate glass was shipped, the bill of lading Intyre, 36 Tex. Civ. App. 399, 82 S. W. providing exemption for breakage. The evi- 346, where the question was as to limitadence showed that the glass was in good tion of value, it was said: "It is well setcondition when delivered to the carrier, and tled that the law presumes the loss to have broken when delivered. It was held that been occasioned by the carrier's negligence.” the presumption was that the carrier was Dressed meat was shipped on a railroad. negligent. Hutkoff v. Pennsylvania R. Co. The regulations of the carrier provided that 29 Misc. 770, 61 N. Y. Supp. 254, affirmed there would be no liability for injury from in 30 Misc. 802, 63 N. Y. Supp. 198. weather or accidental delay, and special

A bill of lading exempted from liability despatch would not be guaranteed unless an for breakage. Glass delivered was badly extra price was paid. The meat was spoiled broken. It was held that the burden of in transit. It was held that the burden was on the plaintiff to show want of ordinary | 4 Ind. App. 326, 29 N. E. 1138, subdiv. II. b; care; but proof of unexplained delay was Johnson v. West Jersey & S. R. Co. 78 prima facie evidence of negligence. Mann v. N. J. L. 529, 138 Am. St. Rep. 625, 74 Atl. Birchard, 40 Vt. 326, 94 Am. Dec. 398. The 496, 20 Ann. Cas. 228, subdiv. II. b; Whitcourt said: “To require the plaintiffs, in worth v. Erie R. Co. 87 X. Y. 413, subdiv. making a prima facie case, to assume the II. b; Rowan v. Wells, F. & Co. 80 App. Div. burden of negating the occurrence of mat. 31, 80 N. Y. Supp. 226, subdiv. Il. b. ters which, if they did occur, were out of As to presumption from injury to live the usual course of events, and particularly stock, see: St. Louis, I. M. & S. R. Co. v. within the defendants' knowledge, would Weakly, 50 Ark. 397, 7 Am. St. Rep. 104, be an extraordinary perversion of the nat. | 8 S. W. 134, subdiv. II. c, 2; St. Louis & S. ural and ordinary rules of evidence.” F. R. Co. v. Wells, 81 Ark. 469, 99 S. W.

In Lamb v. Camden & A. R. & Transp. 534, subdiv. II. c, 2; Cincinnati, N. 0. & Co. 46 N. Y. 271, 7 Am. Rep. 327, where the T. P. R. Co. v. Grover, 11 Ky. L. Rep. 236, trial court was reversed for holding that subdiv. II. c, 2. the carrier had to prove it was not negli- As to presumption from loss, see: Nelson gent when it proved the goods were burned, v. Woodruff, 1 Black, 156, 17 L. ed. 97; the court said: "Cases may occur where Western Transp. Co. v. Downer, 11 Wall. the proof of the loss and circumstances con- 129, 20 L. ed. 160, subdiv. II. h; Marx v. nected therewith may show a case of pre- The Brittania, 34 Fed. 906, subdiv. II. h; sumptive negligence in the defendant, such Goldey v. Pennsylvania R. Co. 30 Pa. 242, as will entitle the plaintiff to recover upon 72 Am. Dec. 703, subdiv. III. that ground, in the absence of further Presumption of negligence was held to proof.”

apply where there was delay. Anderson v. In J. Russell Mfg. Co. v. New Haven S. Atchison, T. & S. F. R. Co. 93 Mo. App. B. Co. 50 N. Y. 121, distinguishing Lamb v. 677, 67 S. W. 707, subdiv. II. a. Camden & A. R. & Transp. Co. supra, it was But the burden of proof as to negligence said that the plaintiff is not always re- was held to be on the shipper where the quired to point out the precise act or omis. bill of lading exempted from liability for sion in which the negligence consists. Neg. damage by fire. The proof of destruction ligence may be inferred from the circum- by fire was held not to give rise to the prestances of the case. Where the accident sumption of negligence. Whitworth v. Erie is one which in the ordinary course of | R. Co. 13 Jones & S. 602, affirmed in 87 N. events would not have happened but for the Y. 413. want of proper care on the part of the de- And where the bill of lading exempted fendant, it is incumbent upon him to show from liability for loss by fire and the goods that he had taken such precautions as pru• were burned, it was held that the burden of dence would dictate; and his failure to fur- proof to show negligence of the carrier was nish the proof where, if it existed, it woulu on the shipper. Sutro v. Fargo, 9 Jones be within his power, may subject him to & S. 231. The court said that "the mere the inference that such precautions were fact of a loss by fire while the goods are omitted.

The question what was in the custody of the carrier fails to essuflicient prima facie evidence of negligence tablish the presumption of negligence on the was not passed upon."

pårt of the carrier.” Where the failure to deliver the freight A bill of lading provided exemption from in good condition or nondelivery was shown, leakage and breakage. Casks in which wine it was held to make a prima facie case as to was shipped were broken and the contents negligence. Southern R. Co. v. Levy, 144 leaked out. It was held that the presump: Ala. 614, 39 So. 95, subdiv. I. a; Steele v. tion that ordinary care was not used would Townsend, 37 Ala. 247, 79 Am. Dec. 49, not apply where it was not shown how subdiv. I. a; Fatman v. Cincinnati, H. & strong the casks were when shipped. Roth D. R. Co. 2 Disney (Ohio) 248, subdiv. I. a; v. Hamburg-American Packet Co. 27 Jones Davidson v. Graham, 2 Ohio St, 131, subdiv. & S. 49, 35 N. Y. S. R. 89, 12 N. Y. Supp. I. a; Grey v. Mobile Trade Co. 55 Ala. 387, 460. 28 Am. Rep. 729, subdiv. I. b; Baltimore And where a vessel encountered marine & O. S. W. R. Co. v. Fox, 11 Ill. App. 180, perils which might well disable a seaworthy subdiv. I. c, 1.

vessel, there was no presumption that a And where stock was injured, the pre- leak from the center-board trunk was due sumption was held to be against the carrier. to negligence. The Warren Adams, 20 C. Louisville & N. R. Co. v. McCarty, 9 Ky. L. C. A. 486, 38 U. S. App. 356, 74 Fed. 413. Rep. 683, subdiv. I. c, 1; Cincinnati, etc. R. A cargo of sugar was injured by sea water. Co. v. Kern, 15 Ky. L. Rep. 656, subdiv. I. The bill of lading excepted perils of the c. 1; Louisville & N. R. Co. v. Hawley, 10 sea. The court said: “If it appears that Ky. L. Rep. 117, subdiv. I. c, 1; Louisville the injury has been caused by the dangers & N. R. Co. v. Lazarus, 13 Ky. L. Rep. 461; of navigation, or some other cause within Swiney v. American Exp. Co. 144 Iowa, 343, the exception of the bill of lading, then it 115 N. W. 212, 122 N. W. 957, subdiv. I. c, 1. devolves upon the shipper to make out that

As to presumption from fire, see: St. the damage might have been avoided by the Louis & S. F. R. Co. v. Parmer, Tex. Civ. exercise of reasonable care and skill upon App. —, 30 S. W. 1109, subdiv. I. c, 1; Coch- the part of the carrier.” ran v. Dinsmore, 49 N. Y. 249, subdiv. II. b; And where the bill of lading exempted Indianapolis, D. & W. R. Co. v. Forsythe,' from perils of the sea, it was held that it

« AnteriorContinuar »