Lamb v. Camden & Amboy Railroad & Transportation Co.

Concurring in the following conclusions arrived at in the opinion of Peokham, J., I shall not add anything to his discussion of them. These conclusions are: First. That the defendant was relieved from liability as carrier for the loss of the cotton by fire, under the contract made by the shippers for its transportation, with the Illinois Central Railroad Company at Cairo. Second. That it is to be assumed, from the evidence, that Warrack, named in the bill of lading as consignee at Chicago, was the agent of the Illinois Central Company, and not the agent of the plaintiffs; that as such agent of the company, he had power to enter into a contract with the Union Transportation Company, for the transportation of the cotton from Chicago to Hew York, and to provide in such contract, for the exemption of all the subsequent carriers from liability for loss happening by fire, for the reason that the Ulinois Central had the power to contract for the transportation of the cotton upon such terms, by virtue of its contract with the shippers at Cairo, but had no power to bind the plaintiffs by any stipulation not embraced in that contract; and that consequently, the plaintiffs were not bound by the stipulation in the contract made by him with the Union Company, that in case of loss, the latter should be liable only for the value of the property at the time of shipment. Third.

Was the contract of the Illinois Central Railroad Company, at Cairo, where the cotton was shipped, a through contract to New York, or only a contract to carry to Chicago, the terminus of its road %

It will be observed, that there is no express contract to carry to New York. The cotton is consigned to the Illinois Central’s agent at Chicago. But it is also marked, in the bill of lading, and consigned “ to Sawyer, Wallace & Co., New York, account J. L. Lamb & Co.,” the plaintiffs; “ through rate, two dollars per 100 pounds.” ■ After stating certain exemptions to that company from liability for damage, this receipt'or bill of lading says: “ And it is further especially understood, that, for all loss and damage occurring in the transit of said packages, the legal remedy shall be against the particular earner or forwarder only, in whose custody the said packages may actually be at the time of the happening thereof, it being understood that the said Illinois Central Railroad Company assumes no other responsibility for their safety or safe carriage than may be incurred on its own road.”

The rate marks on the bill of lading impose no obligation, in this State, to carry further than the first carrier’s hire. (Van Santvoord v. St. John, 6 Hill, 157 .) Nor does fixing the value of through freight necessarily have the effect of making it a through contract.

In Camden and Amboy Railroad Company v. Forsythe ( 61 Penn., 81 ), it was held, that there was no through contract, although the first road, in its bill of lading, fixed the through rate, payable at the point of destination, but stated it would not be responsible, beyond its line, as common carrier. (Collins v. Bristol and Exeter Railway, 38 Eng. L. & Eq., 593.)

In the case at bar, the Illinois road received pay only for the transportation over its own road, received its proportion of the through rate, and carried the freight only to Chicago, the end of its road.

But it contracted for the amount of freight which the shippers should pay for the entire carriage. It virtually guaranteed that this freight should be carried to Mew York at two dollars the hundred.

There is certainly then, very controlling reasons for its stipulating as to the risks to which its transportation should be liable.

In this view the words, “ not liable for loss by fire,” written across the face of the bill, should be interpreted. There is nothing in the language to limit the effect of these words to the Illinois road, and clearly, there is nothing in the reason of the thing.'

Again, these words were in writing. There is a statement in the body, in print, exempting the Illinois Central from liability for fire. If they differed, the writing must prevail. Force must be given to both, if possible. This does give life to both. In Camden and Amboy Railroad v. Forsythe (supra), the court held, that exemption as to fire was confined to the first road, under the language there used.

The bill of lading expressly provides, for limiting the remedy for damages to the property, to the particular carrier on whose road the injury may occur.

The Illinois road virtually says, “lama common carrier to Chicago. I will carry this cotton to that point, and forward it thereafter, and as you agree that there shall be no liability for fire, I guarantee that the through transportation shall be at the rate of two dollars for 100 pounds.”

If not a through contract so as to hold the. first road for its safe transportation to the ultimate point, it may yet be a valid agreement as to the rate, and as to this exemption from liability.

There may be an understanding between the connecting road, without any joint interest or copartnership as to the rate and conditions upon which freight will be forwarded from each other, each being liable for its own defaults, and the first carrier may be the agent of the others.

Had the Illinois Central made a through contract to transport this property to New York, I know of no legal principle that would prohibit its contracting with any other road, to transport or forward it upon such terms and qualifications as to common-law liability as it thought fit to make.

If it made no special contract with another road, yet such other road, as to these plaintiffs, might avail itself of the protecting provisions of the first contract, as to through transport. (See Bristol and Ex. Railway v. Collins, 7 Ho. Lds. Cas., 194, per Lord Ch. Chelmsford.)

1 I think the Illinois Central made no through contract, so as to authorize it to make any special contract different from its own with another carrier. If it did not, what authority would it have to qualify or limit the common-law liability of any. subsequent carrier by a special contract with such carrier ? I can see none. (See Bristol and Ex. Railway v. Collins, 7 Ho. Lords, supra.) It was not the agent of the owner, to make any special contract with the next carrier, except that it should “ not be liable for loss by fire,” as that was the contract already made for its through carriage by whomsoever carried.

This reasoning, if correct, renders it unnecessary to look at the terms of the bill of lading of the Hnion Transportation Company, given to the agent of the Hlinois Central at Chicago.

The question as to the onus of proving negligence in the defendant in the loss of the cotton by fire, was not practically in this case at the trial.

After the defendant had given proof of the loss of the cotton by fire, and some evidence of the care used against fires, the defendant proposed to rest, reserving the right to rebut any proof of negligence offered by plaintiff.

The plaintiffs insisted that defendant must exhaust its proof on that subject as the onus lay on it to prove proper care.

The court so ruled. The plaintiff having proved a prima facie .awe of negligence in defendant’s failure to deliver the cotton, clearly defendant was then bound to exhaust its proof on that question. Defendant had no right to prove one fact and rest, and then return to like proof again. (This will be again referred to.) The defendant proceeded and gave it’s proof in full. The plaintiff then gave some testimony on the point.

The court then charged the jury, that though the defendant was not an insurer, “ yet it was not relieved from the burden of satisfying you, that this loss was not occasioned by negligence on its part; and if it omitted to take that degree of care, which persons of ordinary prudence would usually take under such circumstances, and that caused” the loss, the defendant would be liable;

It was submitted to the jury, to find upon the evidence given (not upon any presumption for lack of proof), as to the exercise of proper care.

There was no charge, as to what the jury should do in case they were in doubt upon the evidence, or if the testimony was balanced as to negligence, but simply to find upon the fects proved.

The plaintiff gave very little testimony as to negligence, and there was little, if any, material contradictory evidence.

Upon confessedly proved facts the jury found the negligence.

The question as to the onus probandi, therefore, is simply hypothetical. The facts were fully proved, no matter by whom, and those facts were properly submitted to the jury to decide.

No legal injustice could thus have been suffered by defendant. In such case no new trial should be granted.

But assume that the question properly arose; then upon whom rests, the onus of proving the exercise or the want of ordinary care by the carrier.

The plaintiff proves the delivery of the goods and the failure to deliver by the carrier, or a demand, and refusal, and rests. The defendant must then make out a defence.

It proves that the goods were destroyed by fire while in defendant’s custody, and that the company is exempt from loss by fire.

Does that make aprima facie defence? I think not.

Here let it be observed is an ordinary fire; it is not a loss by the act of God. A loss by such a fire never is. (Miller

In speaking of mere proof of burglary by an innkeeper, Ch. J. Redfield observed, such proof is not sufficient, inasmuch as the majority of such burglaries may be supposed fairly to result from negligence on the part of the innkeeper. (McDaniel v. Robinson, 26 Verm. at 340; and see C. & A. R. R. Co. v. Baldauf, 16 Penn, 67 ; so in West Trans. Co. v. Downer, 11 Wall., 129 .) The court concedes, that if such loss generally does not occur without negligence, then mere proof of the fire makes no defence, without proving the proper care exercised by the defendant.

I think it may be safely said that a majority of fires are caused by negligence, so safely as to base a presumption of law thereon. That being so, it follows that merely showing that a fire occurred upon defendants’ own premises, originated there and consumed the cotton intrusted to its charge, and in its custody for hire, makes no defence without adding the proof of the exercise of proper care. When a car runs off the track (Carpue v. Lon. and B. R. R. Co., 5 Ad. & Ell., 747); when a stage-coach oversets {Stokes v. Salton-stall, 13 Peters, 181); or a wheel of a coach runs off (Ware v. Gay, 11 Pick., 106 ), and a passenger is injured, it was held, that the nature of the accident afforded proof of the defendant’s negligence, and he was called upon to give proof of care.

So in this court, it was properly held by Grover, J., that where an injury to a passenger was caused by the cars running off the track, the negligence was, prima facie, proved by proof of the running off, and the injury consequent. His remarks are so pertinent that I quote: “ The plaintiff has sustained his cause of action, when he has shown a failure to pet-form the duty from which he has sustained an injury. It is for the defendant, then, to show the facts relieving him from responsibility in the particular case. This imposes no hard

So, in the Exchequer Chamber, it was held, that where the thing is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence that the accident arose from want of care. (Scott v. Lond. Dock Co., 3 Hurlst. & Colt., 596.)

It is said that the plaintiff has averred negligence, and must prove it.

He has averred a failure to deliver the cotton by reason of negligence and want of care.

This he fully proves by proving the failure to deliver. A failure to deliver is prima fade evidence of negligence in the carrier; an omission or neglect to discharge the duty he has assumed.

This is negligence. This was conceded by defendant at the trial, as he made no motion for a nonsuit, but proceeded with his proof.

A defence is not made to this prima facie case of negligence, by simply proving that the property was consumed by an ordinary Are, which broke out on the defendant’s own premises.

If it were a destruction by lightning, the case might, perhaps, be different. Then human care or effort would be generally, out of the case, to avoid the lightning or the extraordinary floods. Though, even there, it is said, the carrier must show the exercise of proper care. (Read v. Spaulding,

But, as to an ordinary fire on one’s own premises, some neglect is, as a general rule, the cause of it.

Instead of being an answer to the prima facie case of negligence, such a single fact would afford additional evidence of a want of care, or of negligence.

The carrier must show a defence. He must show, what it is easy to do, if the truth will allow, that he has done his duty to prevent the fire, that he has exercised ordinary care, in vain. Then his defence is complete, and not till then.

Common justice and public policy alike demand this rule. With what propriety can a plaintiff be called upon to prove facts known only to the defendant or his employes; to call defendant’s witnesses?

The authorities on this subject are conflicting, and it is impossible to reconcile them. I do not propose to attempt it. (McDaniels v. Robinson, 26 Verm., 316 ; Turney v. Wilson, 7, Yerger, 340; Whiteside v. Russell, 8 Watts & S., 44 ; Swindler v. Hilliard, 2 Richardson, 2486; Roberts v. Riley, 15 La. An. R., 103; Beardslee v. Richardson, 11 Wend., 26 , per Savage, Ch. J.; Parsons v. Monteath, 13 Barb., 353 , per Wells, J.; Per contra, id., 48, per C. L. Allen, J.; Mann v. Birchard, 40 Verm., 326 -338; Lichtenhein v. B. and P. R. R., 11 Cush., 70 ; Arent v. Squire, 1 Daly, 347 ; Christie v. Griggs, 2 Camp., 79; Platt v. Hibbard, 7 Cow., 497 . Per, contra: N. J. St. Nav. Co. v. Mer. Bank, 6 How. U. S.,. 344; Schmidt v. Blood, 9 Wend., 268 , and cases there cited; Fort v. Storrs, 2 Barb., 326 ; 3 id., 380 ; Memphis and Charleston R. R. v. Reeves, 10 Wall., 176 ; West. Tr. Co. v. Downer, 11 id., 129; Bingham v. Badgers, W. & S., 495; F. and M. Bank v. Champ. Tr. Co., 23. Verm., 186;)

This precise question, as to the burden of showing-the-exercise or the absence of ordinary care, where goods are consumed: by a fire occurring upon the carrier’s own premises, is not inconsistent with the position, that upon the plaintiff, ultimately rests, the onus of establishing the negligence.

First. The knowledge is exclusively with the carriers. The plaintiff ought not to be compelled to call defendants’ witnesses, or to find them.

Second. Experience shows that an ordinary fire, as a general rule, does not occur without negligence.

Where the testimony is all in, as to the cause of the fire, the care exercised to prevent or to save, the onus may still rest with the plaintiff to establish the negligence; and if the testimony be evenly balanced, that the jury cannot determine to which side it preponderates, the plaintiff cannot recover.

The charge of the judge contained nothing at war with this proposition, and should be sustained.

It is also urged, that the contract of the Transportation Oo. at Chicago, stipulated in substance, that the burden should be upon the plaintiff to show negligence.

It has been already stated that that contract was made without authority from the plaintiff; and hence, imposed no obligation, even if the parties could control the rules of law by contract.

It is urged that the court did not properly define ordinary care to the jury.

There was no exception to the definition, and it cannot here be reviewed.

Upon the question of negligence, I think there was testimony sufficient to carry the cause to the jury.

What is ordinary care depends entirely in each case upon the nature of the peril. The care must be in proportion to the peril.

As to the amount of damages it has already been held in this opinion, that the Union Transportation Company’s contract has no force as against this plaintiff upon that assumption. I do not understand .that the rule of damages is complained of.

The judgment should be affirmed.

For affirmance, Peckham and Allen, JJ.

• For reversal .and new .trial, Oh. j. Gkover, Folgker, and Rafallo.

Judgment 'reversed.