As to the goods in the bill of lading, marked exhibit B, read in evidence, the court, of its own motion, charged the jury:

"1. In this case the plaintiffs are entitled to recover the value of the goods, unless the jury find that they were destroyed by fire at the depot. without any negligence of the defendant or its agents.

"2. The burden of proof is on the defendant to show they were destroyed by fire at the depot, under circumstances tha satisfy the minds of the jury that it was without negligence on the part of the defendant or its agents; or, in other words, that the goods we destroyed by fire whilst the defendant was using ordinary care in keeping them."

Defendant then asked and the court gave the following in

struction:

"The railroad company was only required to take such ordinary care and diligence to protect the goods as is customary amongst prudent business men under like circumstances."

Plaintiff then asked the court to give the jury the following instructions:

"1. Ordinary care, as applied to common carriers, means such care as a reasonably prudent man takes of his own goods.

"2. If the fire in the wharf-boat broke out through the negligence of any of the servants or employés of defendant, this is considered the negligence of the defendant.

"3. A common carrier cannot, by contract, restrict its common law liabilities as an insurer of goods shipped over its line. [Refused.]

"4. Where there are several independent carriers forming a continuous line of transportation, any stipulation made by the first carrier, exempting all carriers of the line from their common law liability, for the destruction of goods by fire, will not inure to the benefit of the last carrier, when the first carrier does not guarantee a through rate of freight, and where it excludes itself from any liability whatever not occurring on its own line." [Refused.]

The court gave the first and second of these instructions, and refused the third and fourth, and plaintiff excepted, etc.

The court instructed the jury that, under the pleadings and admission of the parties, they would find in favor of plaintiffs for the value of the twenty boxes of tobacco embraced in a bill of lading read in evidence, but not above copied, covering the first items in the bill of particulars; and the jury so found; but found in favor of defendant as to the remaining items in the bill of par ticulars, covered by the bill of lading above copied.

Plaintiffs moved for a new trial, on the grounds:

1. That the court erred in refusing to exclude the bill of lading marked exhibit B.

2. In giving of its own motion the first two instructions, etc.

3. In refusing to give the third and fourth instructions asked for plaintiffs.

The court overruled the motion, and defendant took a bill of exceptions, etc.

Judgment was rendered in favor of plaintiffs for the value of the twenty boxes of tobacco, and interest, as found by the jury, and they appealed.

Whilst common carriers may contract against liability for losses, etc., occurring from unavoidable accidents, it is against public policy to permit them to contract for exemption from liability from losses and damages happening from the negligence of themselves or their servants. Taylor, Cleveland & Co. v. Little Rock, Mississippi River and Texas R. R. Co., 32 Ark. 398, and authorities cited.

The court below did not err in refusing the third instruction moved for appellants.

So it is settled that a railroad corporation, in giving a bill of lading for the transportation of goods over its own line, and other connecting lines of railways, or other public means of carriage, may contract against liability for loss of or damage to goods happening beyond the termination of its own line, by unavoidable accidents.

Ib.

The court below, in admitting the bill of lading, and in refusing the fourth instruction moved for appellants, decided in effect that the clause in the bill of lading exempting the Atlantic, Mississippi and Ohio Railroad Company from liability for loss of the goods by fire while in depot, inured to the benefit of the appellee company.

The bill of lading was evidently made out by filling blanks in a printed form. It is to be inferred from its face that it was the purpose of Smyth & Co., the consignors, to send the tobacco from Lynchburg, Virginia, to Bristol by the railway of the company that gave the bill of lading, thence by connecting lines of railways to Memphis, thence by the Anchor line of steamboats to Arkansas City, and thence by the railway of appellee to the appellants, the consignees, at Pine Bluff. There is no contract expressed in the bill of lading that appellee, or any intermediate carrier, should be exempt from common law liability for loss of the goods by fire. The company that gave the bill of lading agreed to carry the goods from Lynchburg to Bristol, and deliver them, it may be assumed, to a carrier of a connecting line, and contracted for its own exemption from liability for loss or damage to the goods by fire while in depot. Beyond this it expressed no contract, except to guarantee that the rate of freight for the transportation of the goods from Lynchburg to Memphis should not exceed sixty-five cents per 100 pounds. There was no proof of any agreement between the shipping company and the owners of connecting lines,

We have

for the transportation of goods on same common terms. nothing to guide us but the expressions in the bill of lading.

By the common law a common carrier is an insurer of goods which he undertakes to carry, except from loss by act of God or the public enemy. A contract to be exempt from responsibility from loss by fire, or other accident, like other contracts, must be upon some consideration. The consideration to the carrier is the exemption from responsibility, and the consideration to the owner of the goods is usually a reduced rate of freight. Hutchinson on Carriers, Sec. 278.

In this case there was no agreement in the bill of lading for a rate of freight beyond Memphis. The appellee was at liberty to charge a reasonable, customary rate for the transportation of the goods, in the absence of a showing to the contrary. The bill of lading fixed no rate for appellee. There is, therefore, an absence of any showing of any consideration to the owners of the goods for an implied contract on their part to exempt appellee from its common law liability for loss of the goods by fire.

Had the company which gave the bill of lading expressed in it a rate of freight to be charged by all the connecting lines to Pine Bluff, the destination of the goods, there would have been ground to hold, upon adjudicated cases, that its contract for exemption from liability for loss by fire inured to the benefit of the owners of all the connecting lines on the whole route, including appellee. Hutchinson on Carriers, Secs. 270, 278, and cases cited; Maghee v. Camden & Amboy R. R. Co., 45 New York, 514; Lamb et al. v. Camden & Amboy R. R. & T. Co., 46 ib. 272; Babcock v. L. S. & M. S. Railway Co., 49 ib. 494; Camden & Amboy Railroad Co. v. Forsyth Bros., 61 Penn. State, 81; Jurson v. Čamden & Amboy Railroad & T. Co., 4 American Law Register, 234 Reversed, and remanded for a new trial.

Principal Case Considered.-The case above reported must be considered as settling the law in Arkansas to the effect that a common carrier may lawfully by express contract limit his liability, but that he cannot exempt himself from liability for the negligence of himself or his agents. Prior to this decision there had been no express adjudication on the point.

Contract Limiting Liability Enures to Protection of Connecting Lines. Where goods are shipped over several connecting lines, and the bill of lading delivered by the first carrier contains a clause limiting liability, this will enure to the benefit of all the carriers on the line. Railroad Co. v. Androscoggin Mills, 22 Wall. 594; Maghee v. Camden & Amboy R. Co., 45 N. Y. 514; Manhattan Oil Co. v. Camden & Amboy R. Co., 54 N. Y. 196; Lamb v. Camden & Amboy R. R. Co., 46 N. Y. 271; Whitworth v. Erie R. Co., 6 Am. & Eng. R. R. Cas. 349; Halliday v. St. Louis, etc., R. Co., 6 Am. & Eng. R. R. Cas. 433.

When Such Protection is Not Afforded.-But where the contract limiting liability is evidently solely for the benefit of the first carrier, as, for example, where he has contracted merely to transport to the end of his own line, and there deliver to the next succeeding carrier on the series, the clause limiting liability will not enure to the benefit of carriers other than the first

one.

Martin v. American Express Co., 19 Wisc. 336; Merchants Dispatch Trans. Co. v. Bollos, 80 Ill. 473; Babcock v. Lake Shore & M. S. R. Co., 49 N. Y. 491; Bancroft v. Merchants Dispatch Trans. Co., 47 Iowa, 262; Camden & Amboy R. R. Co. v. Forsyth, 61 Pa. St. 81; Ætna Ins. Co. v. Wheeler, 49 N. Y. 616.

Analogous Cases. See Little Rock M. R. & T. R. Co. v. Talbot & Co., and Little Rock M. R. & T. R. Co. v. Corcoran, reported, infra.

WEINBURG

V.

RAILROAD COMPANY.

(Advance Case, North Carolina, November 25, 1884.)

A stipulation in a bill of lading given by one of an associated through-line of common carriers, to the effect that if damage to the goods be sustained by the shipper, that company alone in whose custody the goods were at the time of the loss shall be answerable, is reasonable and binding.

CIVIL action tried on appeal from a Justice's judgment at Fall Term, 1883, of Edgecombe Superior Court, before Shepherd, J.

Upon the facts stated in the opinion here, and no evidence of defendant's negligence having been introduced, the court below held with the defendant, and gave judgment accordingly, from which the plaintiffs appealed.

John L. Bridgers, Jr., for plaintiff.

No counsel for defendant.

MERRIMON, J.-The plaintiff delivered to the defendant company a box of merchandise to be transferred over its railroad from Tarboro to Williamston, in this State, and thence by steamer to Baltimore, Md., and took from the defendants a bill of lading that contained the provision: "It is further stipulated and agreed that in case of any loss, detriment or damage to or sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company shall alone be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment or damage, and in such case that company shall have the benefit of any insurance effected by or on account of the owner or shipper of said goods." The goods were of the value of $78, were duly transported by the defendant and delivered to the steamboat company at Williamston, and they were destroyed by fire while in the actual custody and care of the latter company. There is no allegation that the defendant was in default in any respect except as it might be liable on account of

the supposed negligence of the steamboat company. The railroad line and the steamboat line were distinct but connecting lines of transportation between Tarboro and Baltimore, and each in the course of business delivered freights to the other for transportation. This being the case, we are of the opinion that the plaintiff cannot hold the defendant liable for the loss sustained by him.

The bill of lading was evidence of a contract between the plaintiff and the defendant, and the former is bound by all the stipulations therein that were lawful and did not contravene public policy in respect to common carriers. The court held in Phifer v. Railroad, 89 N. C. 311, that a stipulation precisely like that stated above was reasonable, and did not contravene any rule of law or public policy, and was binding upon the shipper of goods or party to it. The Chief Justice delivered an elaborate opinion in that case, correctly expounding the law, and we see no reason to modify it in any respect. It is directly in point here, and the case must be governed by it.

The plaintiff's counsel relied in the argument upon the case of Philips v. Railroad Co., 78 N. C. 294. That case might be appli cable and in point, but for the stipulation in the bill of lading above set forth. If there had been no such stipulation, then the defendant might have been liable in case of negligence.

The view we have taken renders it unnecessary to advert to any other ground of error assigned in the record. Affirmed.

LITTLE ROCK, MISSISSIPPI RIVER & TEXAS RAILWAY COMPANY

v.

TALBOT & Co.

(39 Arkansas Reports, 523.)

If the contract of a railroad company, as expressed in its bill of lading for shipping goods, leaves it in doubt whether the company was exempted from liability for loss happening by fire, the doubt must be resolved against the

company.

Common carriers may contract for exemption from liability for injuries occurring from unavoidable accidents, but it is against public policy to allow them to contract against liabilities occurring from the negligence of themselves or their servants.

When, by contract, a common carrier is exempted from liability for loss occurring by fire, the owner of the goods lost in transit by fire must affirmatively prove that the loss was the result of negligence of the carrier or his agents before he can recover for it.

APPEAL from Jefferson Circuit Court.

M. L. Bell and L. A. Pindall, for appellants.