1. The instruction of the court to the effect that the exception in the bill of lading did not inure to the benefit of the appellant, the last carrier, was erroneous; it was merely a question of construction, and appellant, having accepted the freight and transported under the original contract of shipment, was clearly entitled to all the benefits of the contract.

2. A carrier can make exceptions to a certain class of liabilities. Taylor, Cleveland & Co. v. R. R., 32 Ark. 393, and the burden of proof is on the plaintiff, where the loss occurs within the excepted clause. R. R. Co. v. Reeves, 10 Wall. 176; Transportation Co. v. Doronen, 11 Wall. 129; Redfield on Railways, p. 110, pars. 11 and 12.

ENGLISH, C. J.-John H. Talbot and John M. McCain, doing business under the firm name of John H. Talbot & Co., at Pine. Bluff, brought this action in the circuit court of Jefferson county against the Little Rock, Mississippi River & Texas Railway Company, for the value of ninety-six sacks of corn, fifty-three sacks of oats, ten barrels of sugar, and thirteen packages, twenty-six buckets of manufactured tobacco, six hundred and thirty-seven pounds, all alleged to be of the value of $692.25.

The substance of the complaint was, that the defendant received the goods, under three bills of lading, which are set out, at Arkansas City, for transportation to the plaintiffs at Pine Bluff, and that the goods were lost by the negligence of the defendant.

The substance of the answer was, that, in the bills of lading attached to the complaint, defendant was exempted from liability for the loss of the goods by fire, and that the goods were destroyed by fire by the burning of the wharf-boat R. E. Lee, its receiving depot, at Arkansas City, by unavoidable accident, and without fault or negligence of defendant.

The value of the whole of the goods, as stated in the complaint, was not controverted.

On the trial, the plaintiffs introduced the three bills of lading attached to the complaint, without objection.

The first, marked A, covered the ninety-six sacks of corn and fifty-three sacks of oats. It was a through bill of lading from St. Louis to Pine Bluff, dated the 13th of June, 1880, signed by an agent of the defendant company, and clearly contained an exemption of the company from liability for loss of the goods by fire.

The second bill of lading, marked B, covered the ten barrels of sugar, was a through bill of lading from New Orleans to Pine Bluff, dated the 17th of June, 1880, given by an agent of defendant, and also contained a clause of exemption from liability for loss of the goods by fire.

The third bill of lading, marked C, covered the tobacco, was

given at Richmond, Virginia, June 3, 1880, by the Richmond & Danville Railroad Company, and will be copied at length by the reporter. It contained a clause which defendant insisted exempted it from liability for loss of the goods by fire, but the court ruled otherwise.

It was admitted that the value of the tobacco covered by this bill of lading was $267.22.

Plaintiffs introduced no further evidence.

E. W. Outlaw, witness for defendant, testified that all the goods named in the three bills of lading were received by defendant at Arkansas City, the terminus of defendant's railroad, on Saturday night, the 19th of June, 1880, on the wharf-boat R. E. Lee, which was the receiving depot of the road. That on Sunday morning, about six o'clock, the wharf-boat and contents were all burned, including the goods sued for. That the fire was accidental; and after careful investigation made by himself, who was the freight agent of the defendant, he could not ascertain the cause of the fire. It appeared to have broken out near the lamp room. Stanly Ryland, the clerk of the wharf-boat, had his office and bed-room on the wharf-boat, and slept there. The boat was fully manned with mate and watchmen, both night and day. It was moored about a quarter of a mile below the office of witness, where the bank was better and nearer the railroad track. At the time of the fire, Ryland, the clerk, was up at his breakfast. The day watchman was at the boat, having relieved the night watchman.

On cross-examination the witness said Mr. Star, the mate of the boat, was up in town when the fire occurred, and was not drunk; is now in Memphis, having been discharged, the company having no further use for his services after the boat was burned. He was a boatman by profession. The two watchmen are still in the employ of the company. The investigation showed the day watchman was on the stage-plank when the fire broke out. He was there, because he saved the books and papers out of the office. The boat cost the company $6,500 at Memphis, and $7,500 to tow her down. She was insured for $6,000. The defendant had been recently offered $10,000 for her. The freight was received on Saturday night from the steamers Vicksburg and Commonwealth, and was burned on Sunday morning.

This was all the evidence.

The jury, under instructions of the court, found a verdict in favor of plaintiffs for $692.25 damages, being the value of all the goods embraced in the three bills of lading.

Defendant was refused a new trial, took a bill of exceptions, and appealed.

I. The court, of its own motion, instructed the jury (third instruction) that, as to the tobacco in the Virginia bill of lading, the plaintiffs were entitled to recover for its value.

In so charging the jury, the court decided as matter of law that the bills of lading did not exempt defendant from its common law liability as a common carrier for the value of goods destroyed by fire, which charge was excepted to, and the giving of it made ground of the motion for a new trial.

The clause in the Virginia bill of lading relied on by defendant as exempting it from responsibility for loss occasioned by fire follows: "It is further understood and agreed between the parties hereto that the railroad above mentioned, or any connecting railroad company, shall not be liable for any damages by fire or collision on the rivers and sea, or for loss or damage by storm or accident on water, as the Richmond & Danville and connecting railroads assume no marine risks whatever."

Looking at the whole bill of lading, we concur in the opinion of his honor, the circuit judge, that the clause quoted applies to loss by fire occurring on water, and not on the railways or in their depots. But if the proper construction of the clause be in doubt, the doubt must be resolved against defendant, because the burden was on it to show that it had clearly contracted for exemption from responsibility for loss happening by fire. Hutchinson on Carriers, Sec. 274.

II. The court, on its own motion, as to the goods embraced in the St. Louis & New Orleans bills of lading, instructed the jury: "1. That plaintiffs were entitled to recover the value of the goods unless the jury find that they were destroyed by fire without negligence of the defendant or its agents.

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

The first of these instructions is in harmony with the law that whilst common carriers may contract against liability for losses, etc., occurring from unavoidable accidents, as by fire, it is against public policy to permit them to contract for exemption from liability for losses and damages happening from the negligence of themselves or their servants. Taylor & Co. v. Little Rook, Mississippi River & Texas Railway Company, supra.

As to the second instruction, inasmuch as the St. Louis & New Orleans bills of lading introduced by plaintiffs exempted defendant from liability for loss of the goods by fire, it was sufficient for defendant to prove that the goods were destroyed by fire, and then the burden was upon plaintiff to prove that the loss resulted from the negligence of defendant or its agents. Transportation Company v. Downer, 11 Wallace, 133; Clark et al v. Barnwell et al., 12 Howard, 272.

It was error in the court to give the instruction as framed.

III. Defendant moved three instructions, the first of which the court gave, and refused the other two.

The second assumed that by the Virginia bill of lading defendant was exempted from liability for loss of the tobacco by fire, if it happened without negligence on its part, and the instruction was properly refused, because the bill of lading did not contain such exemption.

The third was:

"Under the bills of lading exhibited with plaintiffs' complaint, the railroad was not liable for loss by fire, and if the goods were burned accidentally, the jury must find for defendant, unless the plaintiffs prove that the fire was caused by the negligence of defendant or its agents."

The instruction was properly refused, because it applied to all three of the bills of lading. Had it been confined to the St. Louis & New Orleans bills of lading, it should have been given.

For the error of the court above indicated, as to the burden of proof of negligence, the judgment must be reversed, and the cause remanded for a new trial.

See Taylor & Co. v. Little Rock, M. R. & T. R. Co., supra, and Little Rock, M. R. & T. Co. v. Corcoran, and note infra.

LITTLE ROCK, MISS. RIVER & TEXAS R. R. Co.

v.

CORCORAN.

(40 Arkansas Reports, 375.)

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

APPEAL from Jefferson Circuit Court.
L. A. Pindall, for appellant.

ENGLISH, C. J.-James W. Corcoran brought this action in the Circuit Court of Jefferson county against the Little Rock, Mississippi River & Texas Railway Company for the value of goods alleged in the complaint to have been received by the defendant, as a common carrier, at Arkansas City, to be carried and be delivered to the plaintiff at Pine Bluff, under a bill of lading which exempted the defendant from liability for loss of or damage to the goods by fire, and which the complainant alleged were lost by the negligence of defendant.

The defendant answered that the goods were received, as stated in the complaint, on the wharf-boat R. E. Lee, at Arkansas City, which, at the time, was the receiving depot of defendant, at the terminus of its road on the Mississippi river, and that the same were burned by fire accidentally and without fault or neglect of defendant on or about the 20th day of June, 1880, and so by virtue of the contract of shipment set out in plaintiff's complaint, it being the only contract of shipment made with plaintiff, the defendant became released from all liability for the goods.

On the trial it was proved that the goods were lost by the burning of the wharf-boat R. E. Lee, used by defendant as a depot, and the evidence conduced to show that the fire was accidental, and without fault or negligence on the part of defendant or its agents in charge of the boat.

Defendant asked the court to instruct the jury that: "In this case the loss and damage by fire being excepted out of defendant's liability, if the defendant proved the goods were lost by fire, the burden of proof is on the plaintiff to show that the loss was caused by negligence."

This instruction the court refused, and in instructions given for plaintiff, ruled, in effect, that the burden was on defendant to prove want of negligence.

The jury returned a verdict in favor of plaintiff for the value of the goods; defendant moved for a new trial, which was refused, and it took a bill of exceptions and appealed from the final judgment.

In Little Rock, Mississippi River & Texas Railway Co. v. Talbot & Co., 39 Ark. 523, s. c. supra, it was decided that 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 the negligence of the carrier or his agents before he can recover for it. Reserved, and remanded for a new trial.

Contracts Limiting Liability Strictly Construed. All contracts limiting liability are strictly construed against the carrier. Edsall v. Railroad Co., 50 N. Y. 661; St. Louis, etc., R. R. Co. v. Smuck, 49 Ind. 302; Atwood v. Transportation Co., 9 Watts, 87; Union Mutual Ins. Co. v. Indianapolis, etc., R. R. Co., 1 Disney, 480; Holsapple v. Rome, W. & O. R. R. Co., 3 Am. & Eng. R. R. Cas. 487; Lindley v. Richmond, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 31; New Orleans, etc., R. R. v. Faber et al., 9 Am. & Eng. R. R. Cas. 90; Nicholas v. New York Central, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 103; McKinney v. Jewett, 9 Am. & Eng. R. R. Cas. 209.

Burden of Proving Negligence when Carrier's Liability is Limited by Contract.-Where there is a clause limiting the liablity on the part of the carrier, and it appears that the loss has been occasioned by fire or some other cause within the exception, the burden is upon the plaintiff to prove negligence on the part of the carrier in causing the loss. Transportation Co. v. Downer, 11 Wall. 133; Boskowitz v. Adams Ex. Co., 9 Cent. L. J. 389; Cochran v. Dinsmore, 49 N. Y. 249; French v. Buffalo, etc., R. Co., 4 Kerzes (N. Y.), 108; Whitworth v. Erie R. Co., 6 Am. & Eng. R. R. Cas. 349.