partial or limited exemption as where it contemplates total exemption from liability. The shipper, it is true, may, by his representations or agreement as to the value of the goods, estop himself from recovering their full value, notwithstanding they are lost through the carrier's negligence. This would be the case, if, upon being required at the time of shipment to state the value of the goods, the shipper misled the carrier by stating a sum less than their value (Code, sec. 2080), or if the shipper and the carrier agreed upon a certain sum as the actual value of the goods, and the charge for freight was based upon that valuation: See, on this subject, Hutchinson on Carriers, 2d ed., sec. 250, and cases cited: Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Chicago etc. Ry. Co. v. Chapman, 133 Ill. 96; 23 Am. St. Rep. 587, and notes; Alair v. Northern Pac. R. R. Co., 53 Minn. 160; 39 Am. St. Rep. 588; also, collection of cases in 29 Am. Law Reg. (1890), 771. But the principle which relieves the carrier from liability for more than the agreed value does not apply where the valuation is merely arbitrary and fixed without reference to the real value of the goods, and this is understood by the carrier as well as the shipper. In the present case there was no inquiry on the part of the carrier as to the value of the goods, and it is clear that a valuation of five dollars per one hundred pounds for wearing apparel and household goods indiscriminately could not have been understood to represent their actual value. The contract in question was simply an attempt to limit the liability of the carrier, without regard to the actual value of the property; and it follows from what we have said that it was inoperative for that purpose, if the loss was occasioned by negligence on the part of the defendant. There being no explanation as to how the loss occurred, the presumption is that it resulted from the defendant's negligence. A verdict in favor of the plaintiff 811 for the actual value proved was therefore proper, and the court did not err in denying a new trial.

Counsel for the plaintiff in error relied upon the case of Georgia R. R. etc. Co. v. Reid, 91 Ga. 377, in which this court treated as valid a stipulation in a contract for the shipment of livestock, which provided that in case of damage the amount claimed for a mule should not exceed one hundred and twenty-five dollars. In that case, however, the question here ruled upon was not made, nor was it decided that such a stipulation would be good in a case in which the negligence

of the carrier caused or contributed to the damage. The sole ground of attack upon the stipulation in that case was, that no consideration existed for it, the plaintiff contending that the rate of freight charged and collected was not a reduced rate. Besides, such a contract, as we have said, would be valid as to loss not involving negligence on the part of the carrier, and the evidence in that case tended to show that the damage resulted from a cause which did not involve such negligence: See opinion in Savannah etc. Ry. Co. v. Sloat, 93 Ga. 803. In the case last cited the precise question now decided was not made; but it is presented in the case at bar, and our judgment as to what the true law is has been stated. Judgment affirmed.

COMMON CARRIERS-CONTRACT EXEMPTING FROM LIABILITY.-A common carrier of property or persons cannot by agreement wholly relieve itself from liability for injuries or loss caused by its own negligence or the negli gence of its agents or employees; and, in the absence of any agreed valuation of property in the contract for its carriage, the carrier cannot limit to a fixed sum its liability for injuries or loss caused by its own negligence, or that of its agents or employees: Abrams v. Milwaukee etc. Ry. Co., 87 Wis. 485; 41 Am. St. Rep. 55, applying the rule to the carriage of livestock. A common carrier of goods may limit his liability except for negligence: Buck v. Pennsylvania R. R. Co., 150 Pa. St. 170; 30 Am. St. Rep. 800, and note. That he may limit his liability to a certain amount, see Pacific Express Co. v. Foley, 46 Kan. 457; 26 Am. St. Rep. 107. A common carrier of freight is liable for injuries thereto resulting from his negligence, notwithstanding he has, by special contract with the shipper, stipulated against liability, except for injuries caused by his fraud or gross negligence: Johnson v. Alabama etc. Ry. Co., 69 Miss. 191; 30 Am. St. Rep. 534.

CASES

IN THE

COURT OF APPEALS

ОР

KENTUCKY.

DAVIS V. COMMONWEALTH.

[95 KENTUCKY, 19.]

EVIDENCE-DYING DECLARATIONS are not admissible except when made by a person whose injuries from another have resulted in death. There fore, dying declarations to the effect that the person making such declarations had killed another person are not admissible in evidence to prove the innocence of a third person on trial for such killing. WITNESS-IMPEACHMENT OF WHEN HE DID NOT TESTIFY TO ANY MATERIAL FACT.-One who places a witness on the stand cannot complain that subsequently testimony was received to impeach such witness, though the fact that he testified to was not material.

WITNESS-IMPEACHING.-THE BAD CHARACTER OF THE WITNESS TWO YEARS BEFORE the time at which he testifies is admissible, because it may tend to throw light on his reputation at the time of the trial.

Riffe, Skaggs, R. T. Burns, and Stewart & Stewart, for the appellant.

William J. Hendrick, attorney general, for the appellee.

20 BENNETT, C. J. The appellant having been convicted of the crime of murdering Viona Pack by the Lawrence circuit court, he appeals and complains as follows: 1. That the court erred in not allowing him to prove by G. W. Miller that Granville Pearl confessed to him on his deathbed that he, Pearl, killed Viona Pack. It seems to us that admissions and confessions as to competency stand upon the same footing. Admissions cannot be used in evidence, except against the person making them in an issue between him and another person, wherein the truth of the admissions is involved, or against his privies claiming through him. And confessions

are incompetent evidence except against a person charged with crime, or, in a proper state of case, against his confederates. Nor is the proposed evidence competent as a dying declaration, because such evidence is only competent when it comes from a declarant whose personal injuries by another have resulted in death, and the declarations must be confined to the manner and circumstances of the injury, and to the person that did it.

2. In allowing evidence to go to the jury, impeaching witnesses who had testified for the appellant, but who had not testified to any material fact for the 21 appellant, the material fact which the appellant desired to prove by them having been excluded by the court. It seems to us that the fact that the witness is sworn and testifies entitles the adversary to impeach his general reputation for truth, without reference to the materiality of his evidence; otherwise there would be constant strife and litigation over the question as to the materiality of the witnesses' evidence in order to determine whether or not the impeaching evidence was admissible.

3. It is contended that evidence of the bad character of a witness sought to be impeached, two years before the time that he testified, is incompetent. It is true that the character of a witness, at the time he testifies, is in issue before the court or jury, but it is equally true that his reputation before then may be inquired into in order to throw light upon his reputation at the time he testifies.

There is no doubt that Viona Pack was assassinated, and we think that the evidence authorized the jury to believe beyond a reasonable doubt that the appellant was the guilty party. The court committed no error.

The judgment is affirmed.

HOMICIDE-DYING DECLARATIONS.-Dying declarations are admissible in evidence only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the declarations: State v. Harper, 35 Ohio St. 78; 35 Am. Rep. 596. See, also, the extended note to Field v. State, 34 Am. Rep. 480.

WITNESSES-PRIOR CONTRADICTORY STATEMENTS.-IMPEACHMENT BY: See the extended note to Allen v. State, 73 Am. Dec. 762; and also the notes to Consolidated Ice Machine Co. v. Keifer, 23 Am. St. Rep. 695; Omaha etc. Refining Co. v. Tabor, 16 Am. St. Rep. 198; Watkins v. State, 14 Am. St. Kep. 157, and Leahey v. Cass Ave. etc. Ry. Co., 10 Am. St. Rep. 306.

WITNESSES-IMPEACHMENT-BAD CHARACTER.-The bad character of a witness who has removed to and resided in another state for eight years be

fore the time of the trial may be shown by proof of his character at the time he removed to such other state, although the impeaching witnesses did not know the character which he bore at the latter place: Watkins v. State, 82 Ga. 231; 14 Am. St. Rep. 155, and note. See, also, the extended notes to Allen v. State, 73 Am. Dec. 771, and Evans v. Smith, 17 Am. Dec. 77.

LOUISVILLE BAGGING MANUFACTURING COMPANY V. CENTRAL PASSENGER RAILWAY COMPANY.

[95 KENTUCKY, 50.]

STREETS-ELECTRIC RAILWAYS.-A MUNICIPAL CORPORATION EXERCISING ▲ POWER DELEGATED to it by the legislature may authorize the con. struction and operation in the public streets of a railway whose cars are propelled by electricity.

STREETS. THE COURTS WILL NOT ENJOIN OR LIMIT THE OPERATION OF

A RAILWAY upon the public streets, unless other ways of travel and transportation are thereby prevented by unreasonable obstruction. STREET RAILWAYS. THE OPERATION OF AN ELECTRIC STREET RAILWAY by an overhead or trolley wire upon the public streets will not be enjoined on the ground that it is dangerous to those who reside on or do business on such streets, and that it prevents the use of the street for the purpose of loading and unloading vehicles.

Thomas F. Hargis, for the appellant.

Humphrey & Davie, for the appellee.

52 LEWIS, J. The Louisville Bagging Manufacturing Company, a 53 corporation, brought this action for an injunction, which was temporarily granted, restraining the Central Passenger Railway Company, a corporation, and its officers from constructing or operating an electric railway on Walnut street, between Nineteenth and Twentieth streets, in the city of Louisville, where plaintiff has a large building used for manufacturing bagging. H. R. Thompson, judge of the Louisville city court, was also enjoined from proceeding, until termination of the action, to try J. J. Tapp, president of plaintiff, and others upon warrants against them for cutting down and removing posts erected by the railroad company for use in operating its cars.

The right to construct and operate by electricity the railway upon Walnut street, it appears, had been, before the action was commenced, granted to the company by resolution or ordinance of the general council of the city of Louisville, duly passed in pursuance of authority conferred by acts of the general assembly. And as exercise of such delegated