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full value.- Barnes v. L. I. R. Co., 115 App. Div. (N. Y.) 44, 100 N. Y. Supp. 593, revg. s. c. 47 Misc. 318, 93 N. Y. Supp. 616.

[27] Whether provisions will be construed as limitation of liability for negligence.

General words in the contract between shipper and carrier, limiting the latter's liability, will not be construed as exempting it from liability for negligence, if they are capable of any other construction.- Kenney v. N. Y. C. & H. R. R. Co., 125 N. Y. 422, 26 N. E. 626.

A stipulation in a bill of lading limiting the carrier's liability will not be held to exempt it from negligence unless it expressly so states.— Westcott v. Fargo, 61 N. Y. 542.

A clause releasing a carrier "from damage or loss to any article from or by fire or explosion of any kind," does not release it from liability for damage by those means, resulting from his own negligence.- Steinweg v. Erie R. Co., 43 N. Y. 123.

A stipulation in the bill of lading that the carrier will not be responsible for delay in transit will not exempt it from liability for delay occasioned by negligence. Such an exemption must be expressly stated in the contract.- Jennings v. Grand Trunk R. Co., 127 N. Y. 438, 28 N. E. 394, affg. s. c. 52 Hun (N. Y.), 227, 5 N. Y. Supp. 140.

[28] Burden of proof.

The burden is on the shipper, where the contract exempts carrier from liability for loss by fire, to show that the fire was due to the carrier's negligence, whereupon the carrier is liable in spite of the exemption.Lamb v. Camden & A. R. Co., 46 N. Y. 271.

If the carrier's liability is limited by special agreement, the burden of proving that the loss was occasioned by want of due care, rests upon the plaintiff, and he cannot rely on absence of proof of diligence, as proof of negligence.- French v. Buffalo, N. Y. & E. R. Co., 4 Keyes (N. Y.), 108.

If the carrier admits receiving goods, which he never delivered, it devolves on him to show that their loss occurred through no negligence or fault on his part.- Blum v. Monahan, 36 Misc. (N. Y.) 179, 73 N. Y. Supp. 162.

The burden is on the shipper to show facts taking the case out of the operation of the exemption clause.- Sejalon v. Woolverton, 31 Misc. (N. Y.) 752, 64 N. Y. Supp. 48; Whitworth v. Erie R. Co., 87 N. Y. 413, affg. s. c. 45 N. Y. Super. 602; Canfield v. B. & 0. R. Co., 93 N. Y. 532, revg. s. c. 48 N. Y. Super. 550.

After plaintiff proves injury to his goods, the burden is on the carrier to show that it did not result from negligence and that it was within

one of the specified exceptions in the bill of lading.- Western R. Co. v. Harwell, 91 Ala. 340, 8 So. 649.

The burden of proof is on the carrier to show that the loss resulted from one of the causes excepted in the bill of lading or special contract. - Western Transp. Co. v. Newhall, 24 Ill. 466.

Where a common carrier claims immunity for the loss of goods with which he has been entrusted, on the ground that such immunity is secured by special agreement, the burden is on him to prove that the loss was occasioned without his fault.-Union Exp. Co. v. Graham, 26 Oh. St. 595.

[29] Delay in transportation -Duty and liability of carriers. Delay as discrimination,- see ante, § 32, note [11].

Preference in forwarding shipments of perishable property noť unjust discrimination.- see ante, § 32, note [14].

A carrier is answerable for any delay beyond the time ordinarily required for transportation by the kind of conveyances used.— Tierney v. N. Y. C. & H. R. R. Co., 76 N. Y. 305, affg. s. c. 10 Hun (N. Y.), 569.

A common carrier must not only transport goods offered, but also deliver or offer to deliver them to the consignee, within a reasonable time.Sherman v. Hudson R. R. Co., 64 N. Y. 254, affg. s. c. 5 Daly (N. Y.), 521.

In the absence of express stipulation, a common carrier is bound to transport merchandise within a reasonable time.- Ward v. N. Y. C. R. Co., 47 N. Y. 29; Harby v. So. R. Co., 75 S. C. 321, 55 S. E. 760.

A railroad is liable for damages resulting from delay in transporting freight owing to a sudden strike on its lines.- Blackstock v. N. Y. & E. R. Co., 20 N. Y. 48, affg. s. c. 1 Bosw. (N. Y.) 77.

The through way bill is the history of the transit of the freight made up for both railroad companies governing the transit and defining the rights of the connecting corporations with reference to the shipment, and upon its receipt by the connecting carrier, it being at the place of connection and subject to the control of such carrier, the duty is imposed on them to receive and transport the freight within a reasonable time, considering its character, to the place of destination.- Cartwright v. Rome, W. & O. R. Co., 85 Hun (N. Y.), 517, 33 N. Y. Supp. 147.

The duty of a carrier to deliver goods within a reasonable time is not absolute, but merely relative, depending on the particular circumstances. -Conger v. Hudson R. R. Co., 6 Duer (N. Y.), 375.

A carrier is under obligation to receive and transport passengers and freight in a reasonable prompt, safe and convenient manner.- State v. Atlantic C. L. R. Co., Fla. 44 So. 213.

Where the carrier agrees in the bill of lading to deliver goods at a specified time, he becomes an insurer of their delivery at that time, but is liable only for consequential damage for failure to deliver at the time specified. Clark v. Am. Exp. Co., 130 Iowa, 254, 106 N. W. 642.

A common carrier is bound by the common law to convey goods committed to it for that purpose within a reasonable time, and on failure, is liable in damages. The legislature has a right to impose penalties to enforce this admitted duty.-Branch v. Wilmington & W. R. Co., 77 N. C. 347.

For losses, expenses, or other damage arising from mere delay, occasioned by a temporary excess of business, and without fault, the carrier is not liable.- Thayer v. Burchard, 99 Mass. 508.

In a suit for damages for delay in shipment, connecting carriers are not liable for damages resulting from improper routing by the initial carrier.- Houston & T. C. R. Co. v. Buchanan, 11 Tex. Ct. R. 1004, 84 S. W. 1073.

[30] - What constitutes unreasonable delay.

Delay due to unprecedented rush of business justifiable,— see ante, § 37, note [8].

A delay of nearly two days beyond the usual time of transportation of perishable goods has been held to be an unreasonable delay.- Frey v. N. Y. C. & H. R. R. Co., 114 App. Div. (N. Y.) 747, 100 N. Y. Supp. 225.

Where goods were offered to a steamship company for carriage and the first ship to sail was at the time full, or the goods could not be loaded before time to sail, the company may send them on the next vessel sailing. Fowler v. Liverpool & G. W. S. Co., 23 Hun (N. Y.), 196; affd. 87 N. Y. 190.

Where goods were shipped from New York City to Denver, Colo., on July 2, evidence showing that on July 10 they had not been delivered at Denver is not sufficient to show unreasonable delay in transit.- Brooks v. D. L. & W. R. Co., 88 N. Y. Supp. 961.

Unreasonable delay in transportation defined.-Illinois Cent. R. Co. v. Cobb, 64 Ill. 128; Illinois Cent. R. Co. v. McClellan, 54 Ill. 58.

The ordinary time for transporting freight between two points was from two to three days.- Held, that there was an unreasonable delay in transportation, where the shortest time in the delivery of 125 cars was six days and the average time for the delivery of the cars which were delivered at all was over thirty days.- Illinois Cent. R. Co. v. Cobb, 64 Ill. 128.

There is an unreasonable delay where a month was consumed in transporting goods a distance of thirty-three miles.- Chesapeake & O. R. Co. v. Saulsbury, — Ky. 103 S. W. 254.

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Evidence considered and held to sustain a verdict of damages for delay of freight.-- Hanson v. Pa. R. Co., 72 N. J. L. 407, 60 Atl. 1101.

A parol agreement to furnish cars, if broken, makes the carrier liable for delay, even if the bill of lading has not been signed.- Texas P. R. Co. v. Nicholson, 61 Tex. 491.

[31]

Validity of statutes relative to delay.

Whether a statute imposing a penalty for failure to ship freight within five days is a regulation of interstate commerce,-see ante, § 25, note [16].

An act imposing a penalty for failure or delay in the shipment of freight is valid.- Lexington Grocery Co. v. So. R. Co., 136 N. C. 396, 48 S. E. 801.

A statute of North Carolina provided that it should be unlawful for any carrier to omit or neglect to transport goods within a reasonable time and provided a penalty for such failure. It further stated what would be considered a reasonable time.-Held, that the enactment of this statute was a valid exercise of police power.- Stone v. Atlantic C. L. R. Co., 144 N. C. 220, 56 S. E. 932.

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In an action to recover a penalty for delay in transportation of goods the burden of proof is on the plaintiff.- Walker Bros. v. So. R. Co., 137 N. C. 163, 49 S. E. 84.

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Military control of a railroad is justification for its refusing to accept goods but not for delay in transporting them.- Illinois Cent. R. Co. v. Cobb, 64 Ill. 128; Illinois Cent. R. Co. v. McClellan, 54 Ill. 58.

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Forwarding goods out of order of receipt as unjust discrimination,see ante, § 32, note [13].

Order in which goods should be forwarded by connecting carriers,see ante, § 35, note [26].

A railroad has a reasonable time after the arrival of property and the offer of it for transportation, to set it in motion from the starting point, and what is a reasonable time must be determined from the circumstances of each case. Bouker v. L. I. R. Co., 89 Hun (N. Y.), 202, 35 N. Y. Supp. 23.

A carrier receiving perishable property for transportation has a common law obligation to forward it immediately to its destination.- Cartwright v. Rome, W. & O. R. Co., 85 Hun (N. Y.), 517, 33 N. Y. Supp. 147.

All persons offering freight have an equal right to have the same transported in the order of their application.- New Eng. Exp. Co. v. Me. C. R. Co., 57 Me. 188.

A carrier must accept and transport goods in the order in which they are tendered, and is liable for damages for every departure from this rule.- Houston & T. C. R. Co. v. Smith, 63 Tex. 322.

Cotton received on a platform wholly disconnected from the railway station but used for that purpose is "received at the warehouse or depot " of the carrier, within the meaning of a statute requiring goods to be forwarded in the order received.- Hill v. St. Louis S. W. R. Co., 75 S. W. 874 (Tex.).

There is no invariable rule requiring freight to be forwarded in the order of its receipt, without regard to its character, condition, perishability, etc.-- Peet v. Ch. & N. W. R. Co., 20 Wis. 624.

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Where a carrier has a duty to ship goods within a reasonable time, and the law limits such time to five days, an agreement to ship "at the company's convenience" would ordinarily be too indefinite to be held reasonable and valid. In an action to enforce the penalties for delay under a penal statute, however, the agreement will not be so held.- Whitehead v. Wilmington & W. R. Co., 87 N. C. 255.

The rigid rule of the common law, for strict construction of contracts limiting the liability of carriers, will not be applied to a case involving a violation of a penal statute.- Whitehead v. Wilmington & W. R. Co., 87 N. C. 255.

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An unreasonable delay in the transportation of goods does not justify the shipper in refusing to receive the goods at their destination.Chesapeake & O. R. Co. v. Saulsbury, 103 S. W. 254.

[37] . Measure of damages.

- Ky.

In an action for damages for unreasonable delay in the delivery of goods, the measure of damages is the difference in the value of the goods at the time and place they ought to have been delivered, and at the time of their actual delivery.— Sherman v. Hudson R. Co., 64 N. Y. 254, affg. s. c. 5 Daly (N. Y.), 521; Ward v. N. Y. C. R. Co., 47 N. Y. 29; Katz v. C. C. C. & St. L. R. Co., 46 Misc. (N. Y.) 259, 91 N. Y. Supp. 720;

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