was no collision, no sudden jerking, and that the agents exercised proper care of the stock. Georgia Southern & F. R. Co. v. Greer, 2 Ga. App. 516, 58 S. E. 782. The shipper loaded the cattle and some were dead when they arrived at their destination, and the deaths were caused by overloading. Virginia Code 1904, § 12941, provides that whenever any property is received by a common carrier, loss or injury to it shall be prima facie evidence of the negligence of such common carrier. Southern Exp. Co. v. Jacobs, 109 Va. 27, 63 S. E. 17.

tiff had a prima facie case when he showed the receipt of the goods by the carrier, and then nondelivery, or delivery in a damaged condition. Any further defense would be in the nature of confession and avoidance. Parker v. Atlantic Coast Line R. Co. 133 N. C. 335, 63 L.R.A. 827, 45 S. E. 658.

In Smith v. North Carolina R. Co. 64 N. C. 235, a shipping contract exempted the carrier from liability for loss by fire. Cotton was burned. It was held that the plaintiff had the burden of proving negligence on the part of the carrier. This case is not in line with the subsequent cases in that state, and the rule would be different under the act of 1897. The court followed the case of New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. ed. 465, and said: "They may, by special contract, be relieved from their peculiar liability as common carriers,

when there is a special contract, the burden of proving the want of ordinary care, or, what is the same thing, of proving negligence, is upon the owner.'

After proof of loss or damage, it was held that the burden of proof was on the carrier to show that the damage was from an exempted cause, and also to show that the injury was not due to its negligence. Mitchell v. Carolina C. R. Co. 124 N. C. 236, 44 L.R.A. 515, 32 S. E. 671. In this case a mule died on the cars. This was on the ground that where a particular fact necessary to be proved rests peculiarly within the knowledge of a party, upon him 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 acts of said company's agents or servants. The court said: "It is contended for the defendant that it is exempted by this contract from all loss or damage not arising from its own negligence, and that therefore, it cannot be required to prove the loss within the excepted classes without requiring it, in effect, to prove its own want of negligence. Even so."

And the burden of proof was held to be on the carrier to show that an injury proved was within excepted causes, and that the injury was caused in some way that would relieve it from responsibility. Lyon v. Atlantic Coast Line R. Co. 165 N. C. 143, 81 S. E. 1. This case adopts the rule in Mitchell v. Carolina C. R. Co. supra. The exemptions were not given. If the bill of lading exempted for all damage not caused by its negligence, the carrier would have to prove that it was not negligent in order to take advantage of the exemption, according to the Mitchell Case. Evidence of the damaged condition of the goods made a prima facie case.

And where cattle were shipped, it was held that the plaintiff's case was made out when he had shown that the cattle were received by the carrier, and not delivered, or delivered in a damaged condition. The burden then was on the defendant to show a special contract and bring the injuries clearly within the terms of its exemption. The unreasonable detention was held to be evidence of negligence. Hinkle v. Southern Co. 126 N. C. 932, 78 Am. St. Rep. 685, 36 S. E. 348.

were not elaborated, and the opinion was evidently based entirely on the particular facts of the case." The contract was proved and it was shown that the cotton was destroyed by fire. "This brought the loss within the exception. What the court evidently intended to say was that then the burden of proving negligence rested on the plaintiff."

VII. Nebraska.

In Atchison, T. & S. F. R. Co. v. Lawler, 40 Neb. 365, 58 N. W. 968, which held that a contract limiting liability for fire was void, it was held that where property was delivered to the carrier, its failure to deliver raised the presumption of negligence, and it devolved on it to overcome the presumption by proof; and that it was not sufficient to show that the goods were destroyed by fire, but it must show that there was no negligence on its part (following Greenleaf on Evidence, § 219).

Cattle were injured and some were killed in transit. An instruction that if the cattle were in poor condition and some of them died and others were injured without any negligence on the part of the carrier, the plaintiff could not recover, but the burden of proof was on the defendant to show those facts by a preponderance of evidence, was held as favorable for defendant as the evidence warranted. Ralston v. Union P. R. Co. 96 Neb. 199, 147 N. W. 478. The carR.rier claimed that the shipper agreed to send a man, but failed to do so. It was held that this did not change the rule. A carrier furnished a car improperly bedded for live stock, and delayed the train. The shipper agreed to go with and take care of the stock. His ear of stock was left on the way without his knowledge, and he

Watermelons were shipped "subject to delay." It was held that it was intended to exempt the carrier from liability for negligence, the clause would not be enforceable. It was also held that the plain

went on further. The stock arrived in bad condition. The defendant pleaded certain facts as contributory negligence on the part of the shipper. It was held that such a pleading established the burden of proof and the carrier assumed the laboring oar. Allen v. Chicago, B. & Q. R. Co. 82 Neb. 726, 23 L.R.A.(N.S.) 278, 118 N. W. 655. The shipper agreed to accompany and care for live stock. The carrier knew that no one accompanied the same. It was held that the delivery of live stock to a carrier in good order, and their arrival in bad order, made a prima facie case, and it devolved on the carrier to show that the damage resulted from some cause which would exempt it from liability. Chicago, B. & Q. R. Co. v. Slattery, 76 Neb. 721, 124 Am. St. Rep. 825, 107 N. W. 1045, 20 Am. Neg. Rep. 405.

Nebraska Const. art. 11, § 4, provides that "the liability of railroad corporations as common carriers shall never be limited." Before this was adopted it was held that the common law applied. Atchison & N. R. Co. v. Washburn, 5 Neb. 117. Under this provision it was held that a carrier could not limit its liability. St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, 22 L.R.A. 335, 4 Inters. Com. Rep. 494, 56 N. W. 957, and Missouri P. R. Co. v. Vandeventer, 26 Neb. 222, 3 L.R.A. 129, 41 N. W. 998, where it was claimed plaintiff could not recover because he had not given the notice required in the contract.

In Union P. R. Co. v. Thompson, 75 Neb. 464, 106 N. W. 598, and Cook v. Chicago, R. I. & P. R. Co. 78 Neb. 64, 110 N. W. 718, the defense that the contract required notice of damage to be given within ten days was held to violate the constitutional provision.

In Pennsylvania Co. v. Kennard Glass & Paint Co. 59 Neb. 435, 81 N. W. 372, it was held that the Constitutional provision applied.

In Miller v. Chicago, B. & Q. R. Co. 85 Neb. 458, 123 N. W. 449, where a stallion was burned in a car and the carrier claimed a released valuation, it was held that the contract was controlled by Neb. Const. art. 11, § 4, providing: "The liability of railroad corporations as common carriers shall never be limited."

case, where it was claimed that the plaintiff, who agreed to accompany hogs, failed to water them properly. It was held that the Constitution did not prohibit this kind of contract. The burden of proof was not raised in either case, and it is probable that the prior case stated it with reference to Indiana.

A shipper, in consideration of a reduced rate, released the carrier from all liability over $5 a hundred pounds. It was held that the Nebraska Constitution prohibited a carrier from limiting its common-law lia、 bility. Wabash R. Co. v. Sharpe, 76 Neb. 424, 124 Am. St. Rep. 823, 107 N. W. 758. The court said: "The delivery of the goods to the carrier in good order, and their arrival at the place of destination in bad order, makes a prima facie case against the carrier. It then devolves upon it to show that the loss or damage was caused by the act of God or some other cause which would exempt it from liability." These household goods were held in freight yards too long and destroyed by flood.

VIII. Presumptions.

As a rule, negligence of the carrier will be presumed where goods in his possession are shown to be damaged. The carrier is then required to show absence of negligence, or that he is excused by reason of the contract exempting liability for such cause. Then the shipper will be required to show negligence of the carrier, and that the exercise of reasonable diligence, skill, and care would have prevented the injury. While negligence is presumed from injury, the cases in subdivision I. hold that the carrier has to go farther than showing that the damage arose from a cause specified in the exemption, and prove that there was no negligence on his part. But in most of the cases in subdivision II. the presumption of negligence is met by showing that the carrier is exempt by the bill of lading. The shipper then has the burden of proof to establish negligence.

burden was on the latter to show that it happened through the excepted cause. No evidence was given to show that the raisins escaped of themselves or by leakage. The Bellona, 4 Ben. 503, Fed. Cas. No. 1,277.

A bill of lading exempted the carrier from loss by breakage or defective packages. Α shipment of raisins arrived with broken boxes and all had some raisins taken from 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. 832, 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 to furnish an attendant, as he had agreed to. This was held untenable, saying it was not supported by Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 17 L.R.A. 339, 32 Am. St. Rep. 239, 31 N. E. 781. "The rule is not doubted that where the owner is in charge of live stock in transit the burden is on him to show a loss caused by the carrier's negligence. This is the point decided in the Indiana case." The above statement in the case of Chicago, B. & Q. R. Co. v. Williams, as to burden of proof, is cited in Chicago, St. P. M. & O. R. Co. v. Schuldt, 66 Neb. 43, 92 N. W. 162, a similar

And where the shipper failed to show that damage to macaroni arose from the perils of the sea, and the macaroni was stowed in the same compartment with green fruit, it was held that the inference was that the damage was caused by bad stowage. The Giava, 56 Fed. 243.

In Cumming v. The Barracouta, 40 Fed. 498 (reversing 39 Fed. 288), the onus was 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 Ill. 184, 14 Am. Rep. 57. default, and the burden is upon him to prove that it arose from a cause for which he is not responsible. If the evidence is as consistent with the conclusion that the loss arose from negligence, the libellants are entitled to recover." In this case some of the barrels were broken, although the ship witnesses testified they were intact when put on lighters.

And where the bill of lading exempted from the perils of the sea, it was held that proof of failure to deliver the goods in good order threw the burden on the shipowner to show that the damage resulted from the exempted peril. This would be prima facie sufficient to bring the case within the exception. If the proof showed that the damage resulted from a sea peril, but did not show that the master had means to avoid the peril, the libellant was held bound to show that the master had such means. The proof of that and the damage was held to raise the presumption of negligence. The Shand, 10 Ben. 294, Fed. Cas. No. 12,702.

So there is a presumption of negligence against the carrier if the injury is not explained.

A saw shipped by express was damaged and a verdict of $475 was awarded. The receipt limited loss to $50. It was held that as no account was given as to how the injury occurred, a presumption of negligence would follow. American Exp. Co. v. Sands, 55 Pa. 140.

In Brown v. Adams Exp. Co. 15 W. Va. 812, referring to American Exp. Co. v. Sands, supra, and Clark v. Spence, 10 Watts, 337, it was said: "But really, the Pennsylvania doctrine that the effect of a special contract is to convert the common carrier into a special bailee for hire, whose duties are to be governed by the contract, and against whom, therefore, if negligence is charged, it must be proved by the party injured, is not good law."

And where a phaeton was burned and the bill of lading exempted for loss by fire, it was held that the presumption was that the railroad was negligent where its employees refused to give the shipper any information as to the cause of the fire. Pennsylvania R. Co. v. Miller, 87 Pa. 395.

And where a package of jewelry was lost by an express company, and the liability by the receipt fixed at $50, it was held that the failure by the carrier to account for the package raised the presumption of negligence, and the limitation of the receipt did not apply. Grogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360, 7 Atl. 134. And where an express receipt stipulated that liability should not exceed $50, it was held that if it could be conceded that the shipper assented to the bill of lading, the carrier would not be excused from the exercise of reasonable and ordinary care.

Glass was shipped by express at "owner's risk," the carrier to be liable for gross negligence. It was held that where goods, properly packed, were delivered to a carrier, their arrival in a damaged condition required the carrier to explain the cause of injury if it was to escape the charge of negligence. Rieser v. Metropolitan Exp. Co. 45 Misc. 632, 91 N. Y. Supp. 170.

A released rate was given for a piano, and the carrier was released from commonlaw liability. When delivered it was found to be broken and of no value. It was held that the burden of proof was on plaintiff, but he was not required to point out the precise act or omission in which the negligence consisted. The failure of the carrier to show that it had taken such precautions as prudence would dictate, and the failure to furnish proof, if any, which would be within its power, would subject it to the inference that the precautions were omitted. Bowden v. Fargo, 2 Misc. 551, 22 N. Y. Supp. 889, affirmed in 68 Hun, 607, 22 N. Y. Supp. 890. The court said: "Proof of the injury, as established by the evidence, is at least prima facie evidence of negligence on the part of the appellant, and unless explained by it is sufficient to make it liable."

And where the express receipt stipulated that the carrier should not be charged for any loss or damage unless caused by fraud or gross negligence, and that the plaintiff should be required to prove fraud or such negligence in order to be entitled to recover, proof of a delivery and acceptance of the goods to be carried, and of a demand for the goods and noncompliance with it, without any explanation, was held sufficient proof of fraud or gross negligence, until evidence of care had been given by the defendants. Newstadt v. Adams, 5 Duer, 43.

A contract to carry pigs exempted the carrier from all liability for damage not caused by its wilful neglect or misconduct. Some of the pigs were missing. It was held that the failure to account for the missing pigs would be presumptive evidence of negligence. Curran v. Midland G. W. R. Co. [1896] 2 I. R. 183. This was on the ground of wilful misconduct; as the pigs belonged to the shipper, they continued to belong to him, and the presumption was that they were still in the possession of the carrier, after having been delivered to it and not accounted for.

It was claimed that the stipulation in the receipt limiting the liability of the carrier made it a bailee for hire of carboys of acid, and that negligence in breaking the same must be shown by the party charging it. But it was held that when it was shown that the carboys were in the control of the As railroad, and were broken in switching,

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 N. 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. II. 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."

In Lamb v. Camden & A. R. & Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327, where the trial court was reversed for holding that the carrier had to prove it was not negligent when it proved the goods were burned, the court said: "Cases may occur where the proof of the loss and circumstances connected therewith may show a case of presumptive negligence in the defendant, such as will entitle the plaintiff to recover upon that ground, in the absence of further proof."

F. R. Co. v. Wells, 81 Ark. 469, 99 S. W. 534, subdiv. II. c, 2; Cincinnati, N. O. & T. P. R. Co. v. Grover, 11 Ky. L. Rep. 236, subdiv. II. c, 2.

As to presumption from loss, see: Nelson v. Woodruff, 1 Black, 156, 17 L. ed. 97; Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160, subdiv. II. h; Marx v. The Brittania, 34 Fed. 906, subdiv. II. h; Goldey v. Pennsylvania R. Co. 30 Pa. 242, 72 Am. Dec. 703, subdiv. III.

Presumption of negligence was held to apply where there was delay. Anderson v. Atchison, T. & S. F. R. Co. 93 Mo. App. 677, 67 S. W. 707, subdiv. II. a.

But the burden of proof as to negligence was held to be on the shipper where the bill of lading exempted from liability for damage by fire. The proof of destruction by fire was held not to give rise to the presumption of negligence. Whitworth v. Erie R. Co. 13 Jones & S. 602, affirmed in 87 N. Y. 413.

In J. Russell Mfg. Co. v. New Haven S. B. Co. 50 N. Y. 121, distinguishing Lamb v. Camden & A. R. & Transp. Co. supra, it was said that the plaintiff "is not always required to point out the precise act or omission in which the negligence consists. Negligence may be inferred from the circumstances of the case. Where the accident is one which in the ordinary course of events would not have happened but for the 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 would be within his power, may subject him to the inference that such precautions were omitted. The question what was sufficient prima facie evidence of negligence was not passed upon."

Where the failure to deliver the freight in good condition or nondelivery was shown, it was held to make a prima facie case as to negligence. Southern R. Co. v. Levy, 144 Ala. 614, 39 So. 95, subdiv. I. a; Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49, subdiv. I. a; Fatman v. Cincinnati, H. & D. R. Co. 2 Disney (Ohio) 248, subdiv. I. a; Davidson v. Graham, 2 Ohio St. 131, subdiv. I. a; Grey v. Mobile Trade Co. 55 Ala. 387, 28 Am. Rep. 729, subdiv. I. b; Baltimore & O. S. W. R. Co. v. Fox, 113 Ill. App. 180, subdiv. I. c, 1.

And where stock was injured, the presumption was held to be against the carrier. Louisville & N. R. Co. v. McCarty, 9 Ky. L. Rep. 683, subdiv. I. c, 1; Cincinnati, etc. R. Co. v. Kern, 15 Ky. L. Rep. 656, subdiv. I. c. 1; Louisville & N. R. Co. v. Hawley, 10 Ky. L. Rep. 117, subdiv. I. c, 1; Louisville & N. R. Co. v. Lazarus, 13 Ky. L. Rep. 461; Swiney v. American Exp. Co. 144 Iowa, 343, 115 N. W. 212, 122 N. W. 957, subdiv. I. c, 1. As to presumption from fire, see: St. Louis & S. F. R. Co. v. Parmer, Tex. Civ. App., 30 S. W. 1109, subdiv. I. c, 1; Cochran v. Dinsmore, 49 N. Y. 249, subdiv. II. b; Indianapolis, D. & W. R. Co. v. Forsythe,

on the shipper. Sutro v. Fargo, 9 Jones & S. 231. The court said that "the mere fact of a loss by fire while the goods are in the custody of the carrier fails to es tablish the presumption of negligence on the part of the carrier."

A bill of lading provided exemption from leakage and breakage. Casks in which wine was shipped were broken and the contents leaked out. It was held that the presump tion that ordinary care was not used would not apply where it was not shown how strong the casks were when shipped. Roth v. Hamburg-American Packet Co. 27 Jones & S. 49, 35 N. Y. S. R. 89, 12 N. Y. Supp. 460.

And where a vessel encountered marine perils which might well disable a seaworthy vessel, there was no presumption that a leak from the center-board trunk was due to negligence. The Warren Adams, 20 C. C. A. 486, 38 U. S. App. 356, 74 Fed. 413. A cargo of sugar was injured by sea water. The bill of lading excepted perils of the sea. The court said: "If it appears that the injury has been caused by the dangers of navigation, or some other cause within the exception of the bill of lading, then it devolves upon the shipper to make out that the damage might have been avoided by the exercise of reasonable care and skill upon the part of the carrier."

And where the bill of lading exempted from perils of the sea, it was held that it