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routes, along one of which he knew that the armies of the enemy were encamped, chose this route, and the goods were taken by such enemy, the carrier would be responsible.*°

Even when there has been some negligence on the part of the shipper, if there is also negligence on the part of the carrier, so that the loss or injury would not have occurred, had it not been for this fault of the carrier, then the carrier remains liable." Yielding to public authority, too, will not excuse the carrier when he is negligent in surrendering the goods by virtue of process illegal on its face. And, when he sets up loss or damage due to inherent nature of the goods to shield him from liability, the loss or damage must not have been due to his failure to exercise ordinary care under the circumstances.48

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Carriers as Warehousemen-Carrier's Liability Under Special Contract As we shall subsequently see, the relation of the carrier to the goods in his possession is sometimes technically not that of common carrier, but that of a warehouseman.** In such cases, then,

again the insuring liability of the common carrier falls away, and the carrier's liability, like that of other warehousemen, is measured in terms of negligence, and the carrier is liable only for his failure

(Eng.) 112; Clark v. Pacific R. R. Co., 39 Mo. 184, 90 Am. Dec. 458; Southern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256.

40 Express Co. v. Kenitze, 8 Wall. 342.

41 Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. E. 489; Mahon v. Blake, 125 Mass. 477; McCarthy v. Louisville & N. Ry. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29.

42 Merriman v. Great Northern Exp. Co., 63 Minn. 543, 65 N. W. 1080; Nickey v. St. Louis, I. M. & S. Ry. Co., 35 Mo. App. 79 (surrender of goods to person who exhibited merely a telegram from a sheriff); Kiff v. Old Colony & N. Railway Co., 117 Mass. 591, 19 Am. Rep. 429; Bennett v. American Exp. Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774. 48 BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199; Harris v. Northern Indiana Railroad Co., 20 N. Y. 232; Ohio & M. R. Co. v. Dunbar, 20 Ill. 624, 71 Am. Dec. 291; Welch v. Pittsburg, Ft. W. & C. R. Co., 10 Ohio St. 65, 75 Am. Dec. 490; Powell v. Pennsylvania R. Co., 32 Pa. 414, 75 Am. Dec. 564; Smith v. New Haven & N. R. Co., 12 Allen (Mass.) 531, 90 Am. Dec. 166; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. As to whether a carrier may or must give perishable property precedence in transportation, see Swetland v. Boston & A. R. Co., 102 Mass. 276; Peet v. Chicago & N. W. R. Co., 20 Wis. 594, 91 Am. Dec. 446; Tierney v. New York Cent. & H. R. Co., 76 N. Y. 305; Marshall v. New York Cent. R. Co., 45 Barb. (N. Y.) 502. See, also, McGraw v. Baltimore & O. Ry. Co., 18 W. Va. 361, 41 Am. Rep. 696.

44 Post, §§ 136, 144.

to exercise ordinary care. Cases of the carrier as a warehouseman are of frequent occurrence, and here again the question of what constitutes negligence is practical and important.

As we shall see in the next chapter, the common carrier of goods is permitted by special contract to reduce his liability from that of an insurer to that of an ordinary bailee, in which case he is again responsible only for negligence. Such special contracts are now so common that it is probably no exaggeration to say that in the majority of shipments the liability of the carrier turns upon the question of negligence.

What is Negligence on the Part of the Common Carrier of Goods

The question of negligence, then, is so often of primary importance, in spite of the common carrier's common-law liability as an insurer, as to demand at least brief consideration. Negligence, ordinarily, as to the common carrier of goods, is judged, as in the case of ordinary bailees for hire, by the standard of the amount of care which men of ordinary prudence are accustomed to exercise under similar circumstances. The term "negligence" is again an intensely relative one, to be decided in accordance with the infinite variety of facts that present themselves in individual cases.** In this connection, the nature of the goods is always a prime determinant. Many goods can be transported in open cars, ex

45 Watts v. Boston & L. Ry. Corp., 106 Mass. 466; Basnight v. Atlantic & N. C. Ry. Co., 111 N. C. 592, 16 S. E. 323; Rogers v. Wheeler, 52 N. Y. 262; Michigan Cent. Ry. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. Ed. 297; E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S. W. 704; Allam v. Pennsylvania Ry. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535; Mulligan v. Northern Pac. Ry. Co., 4 Dak. 315, 29 N. W. 659; Southern Exp. Co. v. Holland, 109 Ala. 362, 19 South. 66.

46 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432; Swetland v. Boston & A. Ry. Co., 102 Mass. 276; Gillespie v. St. Louis, K. C. & N. Ry. Co., 6 Mo. App. 554; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. Ry. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Nugent v. Smith, 1 C. P. Div. (Eng.) 423; The Generous, 2 Dods. (Eng.) 322; Nashville & C. Ry. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594. But see The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804; Atlanta & W. P. Ry. Co. v. Jacobs Pharmacy Co., 135 Ga. 113, 68 S. E. 1039.

47 Chouteaux v. Leech, 18 Pa. 224, 57 Am. Dec. 602 (drying wet goods); Kinnick v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 665, 29 N. W. 772 (live stock); Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446 (preference as to perishable goods); McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721 (placing car bedded with straw so close to engine as to be dangerous, owing to sparks).

48 Shaw v. Railroad Co., 18 Law J. Q. B. (Eng.) 181, 13 Q. B. 347; Root v. New York & N. E. R. Co., 83 Hun, 111, 31 N. Y. Supp. 357. Where fires are burning along the track, it is negligence to carry cotton on open cars. In

posed to the elements. Ordinary care demands that many other goods be protected from rain or sunshine." Live animals require food and water.50 Some articles suffer none when they are a long

surance Co. of North America v. St. Louis, I. M. & S. R. Co. (C. C.) 3 McCrary, 233, 9 Fed. 811, 11 Fed. 380. Where a package is too large for a closed car, it is not negligence to carry it on an open car, provided reasonable diligence is used to protect it from the weather. Burwell v. Raleigh & G. R. Co., 94 N. C. 451. Where the shipper, with full knowledge, selects the vehicle, the carrier is not liable for loss caused by its insufficiency. Carr v. Schafer, 15 Colo. 48, 24 Pac. 873. The carrier must not carry goods in the same car so near that the proximity is, by the nature of the goods, likely to result in damage. The Colonel Ledyard, 1 Spr. 530, Fed. Cas. No. 3,027 (flour injured by the effluvium of turpentine); Alston v. Herring, 11 Exch. (Eng.) 822 (cambric goods injured by sulphuric acid).

49 Where butter shipped to New Orleans in warm weather is carried in a common car, without ice or other protection, the carrier is liable for its deterioration by heat. BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199 (citing Hewett v. Chicago, B. & Q. R. Co., 63 Iowa, 611, 19 N. W. 790); Sager v. Portsmouth S. & P. & E. R. Co., 31 Me. 228, 50 Am. Dec. 659; Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am. Dec. 179; Id., 18 Mich. 427; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Wing v. New York & E. R. Co., 1 Hilt. (N. Y.) 235; Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Boscowitz v. Adams Express Co., 93 Ill. 523, 34 Am. Rep. 191; Steinweg v. Erie R. Co., 43 N. Y. 123, 3 Am. Rep. 673; Alabama & V. R. Co. v. Searles, 71 Miss. 744, 16 South. 255. "Having accepted the butter for transportation defendant cannot escape liability for, not safely transporting it on the ground that it did not have cars sufficient for the purpose." BEARD v. ILLINOIS CENT. R. CO., supra. And see Helliwell v. Grand Trunk R. Co. of Canada (C. C.) 7 Fed. 68. Where a carrier allows ice in which poultry is packed to melt, without renewing it, he is liable if the poultry is spoiled by heat. Peck v. Weeks, 34 Conn. 145. See, also, Sherman v. Inman Steamship Co., 26 Hun (N. Y.) 107.

50 South & North Alabama R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. Cf. Great Northern R. Co. v. Swaffield, L. R. 9 Exch. (Eng.) 132. A carrier has the duty to feed and water stock during transportation, and cannot transfer it to the shipper by a custom requiring him to go along on the same train with the stock to feed and water them at his own risk and expense. Missouri Pac. R. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776. Where the shipper agrees to accompany live stock and attend to their wants, the carrier must allow him reasonable opportunity and facilities for so doing, or the carrier will be liable. Smith v. Michigan Cent. R. Co., 100 Mich. 148, 58 N. W. 651, 43 Am. St. Rep. 440; Dawson v. St. Louis, K. C. & N. R. Co., 76 Mo. 514; Wabash, St. L. & P. Ry. Co. v. Pratt, 15 Ill. App. 177; Ft. Worth & D. C. R. Co. v. Daggett, 87 Tex. 322, 28 S. W. 525; Nashville, C. & St. L. Ry. Co. v. Heggie, 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453; Duvenick v. Missouri Pac. R. Co., 57 Mo. App. 550; Taylor, B. & H. Ry. Co. v. Montgomery (Tex. App.) 16 S. W. 178; Gulf, C. & S. F. R. Co. v. Gann, 8 Tex. Civ. App. 620, 28 S. W. 349. "It is the duty of railway companies to provide suitable places for feeding and watering live stock transported over their lines; and if this is not done they are re

time in transportation. Fruit and other perishable goods must be carried with expedition, and may require icing and refrigeration.51 Proper care on the carrier's part applies not only to its track, its cars, and other vehicles used in actual transportation, but to its other equipment and instrumentalities, whether inanimate or human, and to all the facilities necessary for the business in which he is engaged. When the carrier adopts a car for the purposes of his

52

sponsible for any loss entailed or that occurs from such neglect or failure. The carrier is primarily bound to provide feed and water for stock shipped over its line of railroad. [Citing Illinois Cent. R. Co. v. Adams, 42 Ill. 474, 92 Am. Dec. 85; Toledo, W. & W. Ry. Co. v. Thompson, 71 Ill. 434; Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268; Harris v. Northern Indiana R. Co., 20 N. Y. 232; Cragin v. New York Cent. R. Co., 51 N. Y. 61, 10 Am. Rep. 559.] In Missouri, it is held that a railroad company which transports live stock ought not only to have proper facilities and machinery for unloading the stock shipped over the company's line of road whenever, in the course of the transit, it may be necessary to unload them for exercise and refreshment, but also that it is the company's duty to unload, feed, and water them at their journey's end, as well as along the route, if there be delay in delivering them to the consignee, in order to discharge the carrier from liability, if the health or necessity of the animals require this to be done. Dunn v. Hannibal & St. J. Railroad Co., 68 Mo. 268." Gulf, C. & S. F. Ry. Co. v. Wilhelm (Ky.) 16 S. W. 109. See, also, Bryant v. Southwestern R. Co., 68 Ga. 805. A car containing a horse should be set on a side track at the request of the owner of the horse or his agent, when the persons in charge of the train are informed that the horse is frightened by the transportation, and is acting badly, and in danger of being killed or hurt, if it can reasonably be done. Coupland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534. There is no obligation on a railroad company to lay out, for reloading, a car hired at a certain price for the trip, and partly filled with horses, because one of them has got down in the car, when the owner is with them, and, under the contract, is chargeable with their care, and can, if he chooses, abandon the contract altogether, or make a new one for a longer time. Illinois Cent. R. Co. v. Peterson, 68 Miss. 454, 10 So. 43, 14 L. R. A. 550.

51 See cases cited in note 49; Chicago, I. & L. Ry. Co. v. Reyman, 166 Ind. 278, 76 N. E. 970; Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Tucker v. Pennsylvania R. Co., 11 Misc. Rep. 366, 32 N. Y. Supp. 1. Contra, where the shipper selects the vehicle. Carr v. Schafer, 15 Colo. 48, 24 Pac. 873.

52 Rooth v. Railroad Co., 36 Law J. Exch. (Eng.) 83; Mason v. Missouri Pac. R. Co., 25 Mo. App. 473. Carriers of live stock must furnish proper yards and other appliances to enable the stock to be received, loaded, unloaded, and delivered to the consignee. Covington Stockyard Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73; McCullough v. Wabash Western R. Co., 34 Mo. App. 23; Cooke v. Kansas City, Ft. S. & M. R. Co., 57 Mo. App. 471. A carrier cannot require extra compensation for such facilities. Covington Stockyard Co. v. Keith, supra; Beckford v. Crutwell, 5 Car. & P. (Eng.) 242. Where a railroad company negligently fails to provide a spark consumer, and goods are damaged by sparks from the engine, the carrier is liable, though by contract it was exempt from liability for loss by fire.

own transit he cannot escape, when liable for negligence, by pleading that the car belongs to another.58

Of course, the common carrier of goods is liable for damage resulting from his breach of a contract between himself and the shipper.

SAME-BURDEN OF PROOF

118. The plaintiff makes out a prima facie case of liability against the common carrier by showing the loss of, or injury to, the goods. The carrier can overcome this only by showing that such loss or injury was due to one of the excepted perils. According to the weight of authority, the burden of showing negligence on the part of the carrier in connection with the excepted perils then rests upon the plaintiff.

The liability at common law of the common carrier of goods for loss or injury, with its limitations and the qualifications of such limitations, has been discussed at some length. There remains. the question, of great practical importance, of the person on whom the law places the burden of showing by affirmative evidence these various incidents. The plaintiff must show first that the carrier is a common carrier 5 though this is quite easy as to the great modern carriers, and next a delivery of the goods to such common carrier," in order to fix the liability of the carrier as that of an insurer, with the well-known exceptions thereto.

All that the plaintiff is then required to show is loss of, or damage to, the goods while in the carrier's possession. Delivery to the carrier, and his failure to redeliver the goods, after the lapse of sufficient time for the completion of the transportation, is satisfactory proof, in the first instance, of loss." Delivery of the goods

Steinweg v. Erie R. Co., 43 N. Y. 123, 3 Am. Rep. 673. See, also, Empire Transportation Co. v. Wamsutta Oil Refining & Mining Co., 63 Pa. St. 14, 3 Am. Rep. 515.

58 Combe v. Railway Co., 31 Law T. N. S. (Eng.) 613.

54 Ringgold v. Haven, 1 Cal. 108; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, Fed. Cas. No. 2,730.

55 Hipp v. Southern Ry. Co., 50 S. C. 129, 27 S. E. 623; United States v. Pacific Exp. Co. (D. C.) 15 Fed. 867; Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Michigan S. & N. Ry. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 466; Blanchard v. Isaacs, 3 Barb. (N. Y.) 388; Truax v. Philadelphia, W. & B. Ry. Co., 3 Houst. (Del.) 233.

50 Griffiths v. Lee, 1 Car. & P. (Eng.) 110; Tucker v. Cracklin, 2 Stark. (Eng.) 385; Cooper v. Georgia Pac. Ry. Co., 92 Ala. 329, 9 South. 159, 25 Am. St. Rep. 59; The Priscilla (D. C.) 106 Fed. 739; Browning v. Goodrich Transp. Co., 78 Wis. 391, 47 N. W. 428, 10 L. R. A. 415, 23 Am. St. Rep.

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