Chicago, St. Louis and New Orleans Railroad Company v. Moss. occupy the attitude of agents of the company within the rule invoked. These laborers were the mere sentient tools of the company, authorized by the character of their employment to exercise no discretion or judgment as the representatives of the corporation, but were simply charged with performance of the physical labor necessary to the execution of the instructions of their superior. The judgment is affirmed. Judgment affirmed. CHICAGO, ST. LOUIS AND NEW ORLEANS RAILROAD COMPANY v. Moss. When goods in transportation by a common carrier under a contract limiting his liability as insurer are lost, he must show, to avoid liability, that the loss resulted from an excepted cause, and that he was not guilty of negli gence. A CTION against carrier for loss of goods. The shipping-receipt excepted liability for loss by fire. The plaintiff had judgment below. W. P. & J. B. Harris, for appellant. Calhoun & Green, for appellees. COOPER, J. The question whether a common carrier may, by special contract, secure exemption from his common-law liability as insurer of goods where the loss or injury results from his own negligence, has been differently answered by the courts of the different States. Those of New York, following the English decisions, hold that he may contract for immunity even as against the gross negligence of himself or servants. Smith v. C. R. Co., 24 N. Y. 222; Magnin v. Dinsmore, 56 id. 168; Mynard v. R. Co., 7 Hun, 399. In some of the States a distinction is drawn between gross negligence, as to which protection by contract is not allowed, and slight Chicago, St. Louis and New Orleans Railroad Company v. Moss. or ordinary negligence, from the effects of which immunity may be gained by agreement. Hutchinson on Car., § 260, and authorities there cited. In this State it is settled that a contract by which a common carrier stipulates for exemption from liability for losses occurring from his own negligence of any grade is against public policy and void. Whitesides v. Thurlkill,12 Smed. & M. 599; South. Ex. Co. v. Moore, 39 Miss. 822; Mobile, etc., R. Co. v. Weiner, 49 id. 725; R. Co. v. Faler, 58 id. 911. [Omitting a minor consideration.] The court, on application of the plaintiff, also instructed the jury that it devolved on the defendant to prove not only that the loss occurred by the excepted cause under the special contract, but also that such loss by such was without negligence on the part of defendant or its employees. This is also assigned for error. Where goods are received for transportation by a common carrier, under a special contract by which his common-law liability as insurer is limited, it is held by a number of courts (in fact by a majority of them), that the carrier, having proved the loss to have occurred by reason of the excepted cause, it then devolves upon the shipper to establish the negligence of the carrier, failing in which he cannot recover. Such is the rule in the courts of the United States, of Pennsyl vania, of New York, Louisiana, Missouri, and probably of other States. Clark v. Barnwall, 12 How. 279; Transportation Co. v. Downer, 11 Wall. 129; Patterson v. Clyde, 67 Penn. St. 500; Colton v. Railroad, id. 211, Lamb v. Railroad, 46 N. Y. 271; s. c., 7 Am. Rep. 327; Cochran v. Dinsmore, 49 N. Y. 249; Steers v. Steamship Co., 57 id. 1; s. c., 15 Am. Rep. 458; Read v. Railroad Co., 60 Mo. 199; N. O. Ins. Co. v. Railroad Co., 20 La. Ann. 302; 24 id. 100. On the other hand it is said by Mr. Greenleaf, and it is held in a number of the States, that under such contracts the burden is upon the carrier to show not only the loss by the excepted cause, but also that he himself was free from fault. 2 Greenl. Ev., § 219; Swindler v. Hilliard, 2 Rich. 286; Baker v. Brinson, id. 201; Graham v. Davis, 4 Ohio St. 362; United States Express Co. v. Blackman, 28 id. 144; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247. Grey v. Mobile Co., 55 id. 387; Brown v. Adams Express Co., 15 W. Va. 812. And such would seem to be the rule in Connecticut and Illinois. Harper v. Railroad Co., 37 Conn. 272; Dunspeth v. Wade, 3 Ill. Chicago, St. Louis and New Orleans Railroad Company v. Moss. 285. The doctrine that the burden of proof under such circumstances is upon the plaintiff to establish negligence first found expression in the courts of the United States in the case of Clarke v. Barnwell, which was decided by a divided court. The rule there announced has however been uniformly adhered to by the courts of the United States and has been adopted by those of many of the States. When first announced it was apparently based upon the proposition that by the contract the carrier ceased to be a common carrier and became a simple bailee for hire. In Lamb v. Railroad Co., 46 N. Y. 271; s. c., 7 Am. Rep. 327, GROVER, J., in delivering the opinion of the majority of the court, said: "The defendant was exonerated from all liability as carrier for a loss by the destruction of the cotton by fire. Relieved of this responsibility it was liable only, in case it was destroyed, as bailee for hire." In York Co. v. Central Railroad, 3 Wall. 107, Mr. Justice FIELD said: "By the special agreement the carrier became in reference to the particular transaction an ordinary bailee and private carrier for hire." But an ordinary bailee or private carrier may, by special contract, regulate the degree of diligence which shall be required of him. The next step therefore taken by common carriers was in the direction of contracting against their negligence or misfeasance as a private carrier might do. That they might do this necessarily and logically followed from the principles announced. But the courts took alarm when they contemplated the results, and denied that a common carrier could by contract exempt himself from losses occurring from his own negligence. To do this it was necessary to decide that by such contract a common carrier could not divest himself of his character as such and become an ordinary bailee or private carrier for hire. In Railroad Company v. Lockwood, the point was presented, and the court in deciding the case said: "It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character and becomes an ordinary bailee for hire, and therefore may make any contract he pleases. That is, he may make any contract whatever, because he is a bailee, and he is an ordinary bailee because he has made the contract. We are unable to see the soundness of this reasoning. It seems to us more accurate to say that common carriers are such by reason of their occupation, not by virtue of the responsibilities under which they rest. The theory occa * Chicago, St. Louis and New Orleans Railroad Company v. Moss. sionally announced, that a special contract as to the terms and responsibilities of a common carrier changes the nature of the employment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of any ordinary bailee for hire, whilst the nature of his business renders him a common carrier still." In support of this principle the court relies on the case of Davis v. Graham, 2 Ohio St.; Graham v. Davis & Co., 4 id.; Swindler v. Hilliard, 2 Rich.; Baker v. Brinson, 9 id. and Steel V. Townsend, 37 Ala. hereinbefore cited, in each of which cases it was distinctly decided that a common carrier did not, by reason of a special contract, lose his character as such, and because he did not, that the burden remained on him of showing in case of loss, not only that the loss occurred by reason of the excepted cause, but also that it happened without any fault on his part. As was said in these cases, the law which forbids a common carrier to contract for immunity against loss arising from his own negligence, practically inserts, as if written in the contract after each stipulation for exemption, the words, "Provided such loss occurs without any negligence of the carrier or his agents." Any loss therefore which occurs in any other manner than by the excepted cause and without the fault of the carrier, is not within the terms of the contract. It is a familiar rule, both of pleading and evidence, that a half defense is no defense, and this it would seem would cast upon the common carrier the necessity to plead, and to sustain by proof all the facts necessary to his exoneration. If on the contrary the rule announced by the Supreme Court of the United States is to govern, and if as was said in Railroad Company v. Lockwood, the common carrier does not, by reason of the special contract, become a mere bailee or private carrier, as it was said in Fork v. Railroad Company that he did, then the question arises, what degree of negligence is the shipper required to show? If the "responsibility" of the carrier is only that of a bailee or private carrier for hire, it would, it seems, be necessary for the shipper to show such negligence or want of care as would render liable a bailee or private carrier for hire; while on the other hand, if the "nature of his employment" (that of a common carrier) is the test of diligence and care required of him, then it would seem that the plaintiff should recover upon proof of an absence of that care and diligence which is required of a common carrier. In escaping from one difficulty we would thus encounter another equally perplexing. To us it also seems that Chicago, St. Louis and New Orleans Railroad Company v. Moss. public policy forbids the further relaxation of the principles of the common law governing common carriers. It is no uncommon thing in this age to see under one management a line of railroads extending from the lakes of the north to the gulf of Mexico, or from the Atlantic to the Pacific ocean. To hold that a shipper in New York or Chicago shall be required to establish the negligence of the carrier by proof of the circumstances of a fire in California or New Orleans, would in a great number of cases result in a verdict for the carrier, even though there was in fact negligence. In a large majority of cases the facts rest exclusively in the knowledge of the employees, whose names and places of residence are unknown to the shipper. In many cases the witnesses are the employees whose negligence has caused the loss, and if known to the shipper it may be dangerous for him to rest his case upon their testimony, since the natural impulses of mankind would sway them in narrating the circumstances to palliate their fault by stating the occurrence in the most favorable light to themselves. All the authorities hold that it devolves upon the carrier to show the loss to have occurred by the excepted cause. In doing this it will add but little to his burden to show all the attending circumstances, and that the burden rests upon him to do so and disprove his own negligence we think arises from the terms of the contract, from the character of his occupation, and from that rule governing the production of evidence which requires the facts to be proved by that party in whose knowledge they peculiarly lie. The judgment is affirmed. Judgment affirmed. |