Plaintiffs Brief — Charnock v. Texas & Pacific R. Co.

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FILED

MAR 15 1904

JAMES H. McKENNEY,

SUPREME COURT OF THE UNITED STATES.

October Term, 1903.

No. 194.

HENRY CHARNOCK, Pvarntirr 1x Error,

v8.

THE TEXAS AND PACIFIC RAILWAY COMPANY.

BRIEF FOR PLAINTIFF IN ERROR.

Branco K. MILuer,

WitiiaM S. PARKERSON,

Attorneys for Plaintiff in Errer.

Jupp & Derweizer, Pamnrers, Wasuivoton, D. C. 10038

sR baat oa oe, eee eg I eS SN eae M4 an

SUPREME COURT OF THE UNITED STATES.

Octoser Term, 1903.

No. 194.

HENRY CHARNOCK, Prainrirr 1x Error,

08.

TEXAS AND PACIFIC RAILWAY COMPANY.

BRIEF FOR PLAINTIFF IN ERROR.

Statement of the Case.

This is a suit for $2,440.32, with interest, the value of 52

bales of cotton, delivered to the defendant by plaintiff at

Lunenburg plantation, parish of Rapides, Louisiana, for car-

riage from that point to New Orleans, Louisiana.

Suit was first instituted in the civil district court for the

parish of Orleans, State of Louisiana, but was subsequently

removed to the circuit court of the United States for the

eastern district of Louisiana, on the application of the de-

fendant, on the ground that it was a corporation created by

and organized under certain acts of Congress (R , 5-6).

In the circuit court the defendant pleaded, first. the gen-

eral issue, and under the reserve of this plea it set up that

the cotton was received by it, to be transported and deliy-

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ered under certain bills of lading ; that the cotton was de- -

stroyed by fire while in possession of the defendant ; all other

allegations of the petition were denied.

The answer further set up that the bills of lading, under

which the cotton was shipped, stipulated that the defendant

should not be liable for any loss or damage to it by fire, and

this exemption was specially pleaded and set up; there was

a further denial that plaintiff had any interest in the suit,

for the reason that he had already assigned or parted with

the interest in favor of an insurance company or insurance

companies, unknown to defendant (R., 9-10).

On the trial of the cause it was proven that no insurance

had been procured on the cotton, and hence there were no

policies to assign (R., 29).

Subsequently, on the trial of the cause, there was a ver-

dict and judgment for the defendant.

At the trial bills of exception were taken by the plaintiff,

first, to the refusal by the court, upon the whole of the testi-

mony and evidence, both for plaintiff and defendant, to in-

struct the jury to find a verdict for the plaintiff; second, to

the action of the court in directing the jury to find a ver-

dict for the defendant upon the whole of the testimony and

evidence, both for plaintiff and defendant, and, third, to the

refusal of the court, upon the whole of the testimony and

evidence of both plaintiff and defendant, to submit to the

jury and allow it to pass upon the question whether or not

the loss or destruction of the cotton by fire was due to or

caused by defendant’s negligence.

All as is shown by the bills of exception Nos. 1, 2, and 3,

found in the Record, at pages 15-34 and 46.

The whole of the testimony and evidence introduced and

filed by both plaintiff and defendant was annexed to and

made part of the bill of exception No.1. This evidence in-

cluded the bill of lading in question, issued by defendant to

plaintiff, the third paragraph of which contained the follow-

ing stipulation, to wit:

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“That neither the Texas & Pacific Railway Co., nor any

connecting carrier handling said cotton, shall be liable for

damage to, or destruction by fire,” * * * (R., 18).

The case was carried by writ of error to the circuit court

of appeals of the United States, fifth circuit, by which the

judgment of the circuit court was affirmed. ‘The judgment

of the former court, by writ of error, is brought here for re-

’ view, jurisdiction being found upon the fact that The Texas

and Pacific Railway Co., defendant, is a corporation created

by certain acts of Congress, and hence this is a case arising

under the laws of the United States.

ASSIGNMENTS OF ERROR.

The following are the assignments of error in this case :

1. That the circuit court of appeals erred in affirming,

upon the whole of the evidence introduced by plaintiff and

defendant, the action of the circuit court in directing a

verdict for the defendant.

2. That it also erred in directing a verdict for defendant

and withdrawing consideration of the evidence from the

jury; also in directing the jury to find a verdict against

plaintiff.

3. That it also erred in affirming the action of the circuit

court in refusing to allow plaintiff to submit to and argue

before the jury the question of the neglegence of the de-

fendant, by reason of which plaintiff claimed the destrue-

tion by fire of his cotton.

4. That the circuit court of appeals was likewise in error

in holding that the evidence found in the record did not

show negligence on the part of the carrier: that the court

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should have held the contrary, and have reversed the

judgment of the circuit court brought before it for review

on the ground that the alleged negligence of the defendant

was amply sustained by the evidence.

5. That the circuit court of appeals should have held that

the circuit court committed error upon its refusal, upon the

whole of the evidence in the case, to direct a verdict for the

plaintiff.

6. That it was likewise in error in affirming the refusal of

the circuit court to direct the jury, upon the whole of the

evidence in the case, to find a verdict for the plaintiff.

7. That the circuit court of appeals erred in affirming the

action of the circuit court in refusing to allow the submis-

sion of the case to the jury on the question whether or not,

upon the whole of the evidence before it, the destruction of

plaintiff’s cotton complained of was due to the negligence of

the defendant.

8. That upon the whole of the evidence offered in the case

and adduced ‘before the jury it was clearly shown that the

destruction of plaintiff’s cotton was caused by the negligence

of the defendant, from the liability of which the law does

not pert sit 1t to stipulate that it should be exempt.

9. That the circuit court of appeals also erred in affirm-

ing the action of the circuit court in holding that the loss

of said cotton was not due to the negligence of defendant.

SYLLABUS.

In order to be binding upon the shipper a contract lim-

iting the common-iaw liability of a carrier must be upheld

by a valid consideration.

Hutchinson on Carriers, sec. 278.

Wehman vs. Minneapolis, etc., Co., 61 Am. & Eng. R.

Cases, 273.

In Louisiana, where the consideration is denied, and the

evidence leaves its existence or reality in doubt, the burden

is on the carrier to prove the consideration.

Mossop vs. His Creditors, 41 La. Aun. Rep., 297.

The validity or effect of the exemption is determined by

the law of Louisiana.

Liverpool, etc., Co. vs. Phoenix, etc., Co., 129 U. S.,

397-453.

Where proof of one of the facts in issue is peculiarly within

the knowledge of one of the parties, the burden of proof is

shifted to the party who has special knowledge as to the con-

troverted fact, and he must establish it by evidence.

King vs. Adkins, 33 La. Ann. Rep., 1057-1068.

School Board vs. Trimble, 1°73-1079.

Where a bill of lading, or contract, limiting the liability

of the carrier, contains no statement of the rate paid, the

whole limitation is void.

Kellerman vs. Kan. City, etc., R. Co., 68 Mo. App.,

255-275.

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Contracts limiting the common-law liability of carriers

are not favored by the law, and they are not binding on the

shipper unless fairly made and freely entered into by him.

Adams Express Co. vs. Nock, 2 Duval (Ky.), 562-565.

Hance vs. Wabash, etc., R. Co., 56 Mo. App., 476-482.

In order to be valid, such contract must be the choice of

the shipper, and not of the carrier; the shipper must be al-

lowed an option or opportunity to select under which, the

common-law or limited liability, he will ship his goods ; if

such free choice or option is not allowed him, the contract is

not reasonable, and therefore is void; both rates, that for

transportation under the common-law liability and that

under the limited liability, must be free to the shipper in

order that he may have real liberty of choice in making the

selection between the two; otherwise, the contract limiting

the liability is not fair or reasonable, and therefore is void.

Atchinson, ete., Co. vs. Dill, 56 Am. & Eng. R. Cases,

376.

Dovignac vs. Mo. Pac. R. Co., 57 Mo. App., 550.

Lewis vs. Great Western R. Co., 3 Q. B. Div., 195; 47

L. J., Q. B. Div., 131.

Car vs. Lancashire, ete., Co., 21 L. J., Exch. 261; 7

Exch., 707.

L. & N. R. Co. vs. Gilbert, 42 Am. & Eng. R. Cases,

372-375.

A carrier is not permitted to so limit its liability as to

exempt it from tle consequences of its own negligence.

N. Y. Central R. Co. vs. Lockwood, 17 Wall., 357-384.

The Tanbark, 23 Fed. Cases, 680, case No. 13742.

Where there is a clause limiting the liability of a carrier

it bears the burden of proof to show not only that the cause

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of the loss was within the exemption, but also that it was not

due to its negligence or that of its servants.

South, ete., Co. vs. Henlin, 56 Ala., 606 (23 Am. Dec.,

598).

Inman vs. South Carolina R. Co., 129 U. S., 128-139,

Duvenick vs. Mo. Pac. R. Co., 57 Mo. App., 550-555.

Dillard vs. L. & N. R. Co., 2 Lea (Tenn.), 288.

Steele vs. Townsend, 37 Ala., 247.

Adams Exp. Co. vs. Stetaners, 68 II]., 184 (14 Am. Dec.,

457).

‘Texas, ete., Co. vs. Richmond, 94 Tex., 571 (63S. W., 5

619). f

In Louisiana, where the contract exempts the carrier from :

any loss by fire, he carries the burden of proving not only ;

the exemption, but also that the loss was not due to the ear- :

rier’s negligence, or omission of duty, in any manner caus-

ing or contributing thereto.

Maxwell & Putnam vs. So. Pac. R. Co., 48 La. Ann.

Rep., 397.

Roberts vs. Riley, 15 La. Ann. Rep., 103.

This rule has been affirmed by decisions of Federal courts.

New Jersey, ete., Co. vs. Merchants’ Bank, 6 H., 383.

Seiller vs. Pac. Co., 21 Fed. Cases, 1042, case No.

12644.

Ormsby vs. Union Pac. Co., 4 Fed. Rep., 706-712.

The exemption from loss or damage by fire is not effective

unless the fire be the proximate cause of the joss or damage.

Condict vs. Grand Trunk R. Co., 54 N. Y., 500-504-

505.

Proximate cause of the loss here was not the fire, but de-

fendant’s negligence, which preceded it and without which

the fire would not have occurred.

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The delivery of goods for shipment at a place where the

carrier has consented to receive them for transportation is

a complete delivery to the carrier, and when this is done its

liability for the goods is that of a common carrier.

St. Louis, etc., Co. vs. Murphy, 60 Ark., 337 (30 S. W.,

419).

Dixon vs. Georgia, etc., Co., 110 Ga., 173 (35 S. E., 36y).

I. C. R. Co. vs. Smiser, 38 IIl., 354.

Greenwood vs. Cooper, 10 La. Ann. Rep., 796.

Barrett vs. Salter, 10 Rob. (La. Rep.), 424.

Fitchburg, etc., Co. vs. Hanna, 6 Gray (Mass.), 539.

A special contract exempting the carrier from liability in

specified instances is to be used by it against any claim of

liability as to which it was designed to furnish protection.

So. Pac. R. Co. vs. Arnette, 111 Fed. Rep., 849-852.

Where goods are delivered for shipment at a place desig-

nated by the carrier, and before being ladened, and while

in such place, they are stolen or destroyed, the carrier is

guilty of negligence, if it makes no provisions against such

theft or destruction, and is liable to the shipper for the value

of the goods.

Hutchinson on Carriers, sec. 89.

Fisher vs. Brig Norvall, 8 N.S. (Martin’s La. Rep.),

120.

Barrett vs. Salter, 10 Rob. (La. Rep.), 434.

Roth vs. Harkson, 18 La. Ann. Rep., 705.

Maxwell & Putnam vs. So. Pac. R. Co., 48 La. Ann,

Rep., 399.

If the carrier negligently leaves goods in a place of dan-

ger, he cannot by stipulation exempt himself from liability

for loss by fire.

McFadden vs. Railway Co., 92 Mo., 343.

ae

ARGUMENT.

Upon the whole of the testimony and evidence heard and

adduced on the trial of this cause plaintiff was entitled to a

verdict in his favor.

The testimony shows (R., 21-28) that the cotton was

brought by a gang of laborers employed on the Lunenburg

plantation and working under the superintendent of the

place to Meeker’s Switch, which was on the plantation ; that

under plantation superintendence, the cotton was loaded

into two box cars of the defendant, which it had brought

there for the purpose of receiving the cotton ; that after the

latter was stored in the cars the doors of the latter were

closed and locked by the superintendent of the plantation ;

that thereupon he proceeded to Lecompte, the nearest sta-

tion of the defendant to Meeker’s Switch, at which it main.

tained neither station nor agent, and there obtained a bill

of lading for the transportation of the cotton to New Orleans,

the bill of lading being the same described in the petition ;

that the loading of the cotton was completed at about 2.30

o'clock in the afternoon, and the bill of lading delivered to

the plantation superintendent at Lecompte by the agent of

defendant at about 5.30 o’clock the same afternoon.

About 10 o’clock on the night following the cars contain-

ing the cotton were discovered to be on fire. There was no

agent or other representative of the defendant present at the

place at the time of the fire. Both the cars and the cotton

were unguarded and unwatched, being left on the track in

an open field. There was no water or other appliances to ex-

tinguish the fire or to save the cotton or any portion of it.

R., 21-28.

From the time the cotton was loaded on the cars of de-

fendant, which had been sent by it for the express purpose,

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of receiving the cotton for transportation, or, in any event,

from the moment defendant issued its bill of lading for the

cotton, about 5 o’clock on the day on which the cotton was

loaded, the latter was in the possession of the defendant as

a common carrier, for the safety of which defendant was

from that moment responsible as such carrier.

The defendant having thus voluntarily assumed, as re-

gards the cotton, the responsibility of a carrier, it was re-

quired to take such measures as might be necessary to

safeguard and protect the property from loss or damage, and

the failure to take such precautions was negligence on the

part of the defendant.

The assignments which charge error in the refusal to

direct a verdict for the plaintiff, in instructing the jury to

find a verdict for the defendant, and in refusing to allow the

case to go to the jury on the question of defendant's negli-

gence, may be conveniently argued together.

Primarily it was the duty of the defendant to transport

plaintiff's cotton, under its common-law liability, as a car-

rier, Which is practically that of an insurer, and, if the plain-

tiff so required, this the defendant would have been obliged

todo. It was the right of the plaintiff to exact this or to

have made his election to ship under the limitation of de-

fendant’s common-law liability after he had been given an

option to choose between the two.

In support of this proposition, however, argument at

greater length and authorities will be made and cited here-

after.

In his petition plaintiff set out the exemption clause of

the bill of lading, but averred that he was not bound by it,

and that the same was null and void, for the reason that

he received no consideration for the granting of the exemp-

tion, and that the rate of freight was the only one which

the defendant could give, and that the fire which destroyed

the cotton was due to the negligence of the defendant, its

servants or employees.

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It has been decided that in order to support a stipulation

of exemption of a common carrier from any liability for

the loss of goods destroyed by fire there must have been

some consideration, other than the mere contractual rela-

tion of the parties, moving from the carrier to the shipper,

and contracts of exemption, like all other contracts, required

a consideration to support them.

Wehman vs. Minneapolis, ete., Co.,61 Am. & Eng.

R. R. Cases, 278.

The clause of a bill of lading by which a carrier is exempt

from loss due to specific causes, to be valid, must be upheld

by a consideration.

If a carrier seeks to evade liability by reason of a special

contract, it must be made to appear that the carrier had a

higher rate for contracts of carriage under its common-law

liability than for the same under its limited liability.

The validity or effect of the exemption is to be construed

by the law of Louisiana.

Liverpool, ete., Co. vs. Phoenix Ins. Co., 129 U. &.,

397-453. :

Under the law of Louisiana, while the denial of a consid- |

eration of a contract does not of itself require the party re- q

lying on the contract to prove the consideration, vet, when :

the evidence leaves the existence or reality of the considera- 4

tion in doubt, the burden is on the obligee to sustain it by ‘

proof. :

Mossop vs. His Creditors, 41 La. Ann. Rep., 297. ‘

So far as concerned the plaintiff here, the evidence shows :

that he received from the defendant, without objection on :

his part, a bill of lading containing an exemption from the ;

carrier of any liability from loss by fire. The plaintiff re- :

ceived or was paid nothing as a consideration for this agree- ;

ment. If there was such consideration it was a fact pecu-

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liarly, if not entirely, within the knowledge of the defendant,

and to which it had offered no evidence.

In Louisiana, under the circumstances detailed above,

where a party fails to furnish evidence which is clearly

within his power, all presumptions of law are against him.

King vs. Atkins, 33 La. Ann. Rep., 1057-1065.

Under these circumstances the burden of proof is shifted

to the party who knows the fact inquired about and can

establish it by evidence.

King vs. Atkins, 33 La. Ann. Rep., 1065.

School Board vs. Trimble, 33 La. Ann. Rep., 1073-

1079.

It has also been decided that where the bill of lading or

contract containing the limitation of liability is blank or

contains no statement as to the rate paid that the whole

limitation is void.

Kellerman vs. Kan. City, etc., Co., 68 Mo. App., 255-

275.

The bill of lading in this case contains no statement at all

as to the rate of freight charged. The blanks left for this

purpose are not filled out, so that the bill of lading itself

furnishes no information at all as to the rate which was

charged for the transportation. The recitals of the bill of

lading in this regard are the following, to wit:

ORI WUE BE BD LOB is cnsscss ssesnsnesscsccsncncssncess $ =

Fe I iim an Rangvennies. beneshassunecssahansasanven $ Hs

I SI iccanseknsnshachshdvinsaraccxnnsasereun $ “i

R., 18.

It would therefore seem tliat the charges for carriage did

not appear on the bill of lading, and hence the stipulation

of non-liability was void.

Contracts limiting the common-law liability of carriers

are not favored by the law, and in order for such a contract

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to be binding on a shipper it must be fairly made and freely

entered into by him.

Adams Express Co. vs. Nock, 2 Duval (Ky.), 562-565.

Hance vs. Wabash, etc., R. Co.. 56 Mo. App., 476-482.

The carrier would be obliged to receive plaintiff's cotton,

under its common-law liability, if the shipper insisted

upon it.

Wallace vs. Matthews, 99 Am. & Eng. R. R. Cases,

473.

Tee ee ore:

A contract of carriage containing a clause limiting the

liability of the carrier, to be valid, must be the choice of the

shipper, and not of the carrier; it is necessary that the

shipper should have been allowed an opportunity or option

to select under which, the common-law liability or the

limited liability of the carrier, he would ship his goods; if :

such choice or option is not allowed lim, the contract is not :

fair nor reasonable, and is, therefore, void; even in regard

to the consideration, it must appear that both rates of trans- i

portation, that of the common-law liability and that under &

PLE NIO EI eS

the limited liability, were offered the shipper and were

reasonable, and that he had a genuine freedom of choice in

making his selection as between the two.

Atchison, etc., Co. vs. Dill,55 Am. & Eng. R. R. Cases, ¢

376. t

Duvenick vs. Mo. Pac. R. Co., 57 Mo. App., 550.

A carrier cannot limit its liability at all unless the ship-

per has been given an actual freedom of choice between the

different kinds of contract under which the company will

carry the goods, and this even where the shipper does not

demand different terms. ;

Little Rock, etc., Co. vs. Cravens, 55 Am. & Eng. R. f

Cases, 650.

So PRE Oe Pe ATE

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It was the duty of the defendant, within whose knowledge

the facts lay exclusively to make it clear, that it did not

make the same charge for carrying under its common-law

liability as it made for transportation under its limited

liability.

Michigan, etc., Co. vs. Haile, 6 Mich., 257-288.

L. & N. R. Co. vs. Gilbert, 42 Am. & Eng. R. Cases,

372.

It is the rule in Louisiana that where a carrier seeks to

avail itself of a clause in a bill of lading exempting it from

liability for fire, and this exemption is not disputed in the

case stated, the defendant carries the burden of proof that

the loss was not due to the company’s negligence, or to any

omission of duty which in any manner caused or contrib-

uted to the loss.

Maxwell & Putnam vs. Railway Co.,48 La. Ann. Rep.,

385-397-398.

Carriers are liable for the loss or damage for things in-

trusted to their care, unless they can prove that such loss

or damage is occasioned by accidental or uncontrollable

causes.

R. C. C. of Louisiana, 2754.

Also, carriers are subject, in respect to the safe keeping

and preservation of the things intrusted to them, to the

same obligations and duties as are tavern-keepers, in the title

of the Code of “ Deposit and sequestration”

R. C. C. Louisiana, 2751.

And turning to this title we find that an innkeeper is re

sponsible for any of the effects which are stolen either by

its servants or agents, or by strangers going or coming into

the inn.

R. C. C. Louisiana, —.

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The depositary is bound to use the same diligence in

preserving the deposit that he uses in preserving his own

property.

R. C. C. Louisiana, 2937.

And this latter provision is to be rigorously enforced where

it has been agreed that the depositary shall have a reward

for preserving the property.

R. C. C. Louisiana, 2938.

Where the property is lost or destroyed, the liability of

the carrier must be governed by the provisions of R. C. C.,

2967, which makes it liable for the effects which are stolen

by strangers, and it can be said in the present case that the

defendant, who made a charge not only for carrying, but

also for the preserving the cotton while in its cars on its

own tracks awaiting transportation, should have used the

same care in preserving its own property. Where the cotton

was loaded upon and locked in its own cars provided for

this purpose, the cotton was left practically abandoned as to

all protection in an open field in the night-time.

The burden of proving the reasonableness and fairness

of the stipulation limiting the company’s liability was

upon the carrier itself, and it was unreasonable save when

a fair and genuine option has been given the shipper to

choose the kind of contract or the rates of freight under

which he should ship.

Lewis vs. Great Western R. R. Co., 3 Q. B. Div., 195;

47 L. J., Q. B. Div., 131.

Atchison, ete., Ry. Co. vs. Dill, 55 Am. & Eng. R. R.

Cases, 376.

A carrier cannot force upon the consignor a contract

limiting the earrier’s liability. The consignor may refuse

to accept such a contract and insist upon the company

taking his goods subject to the general liability of common

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carriers, and this implies that he must have an option or

chance of making his selection before or at the time of their

refusal or allowance.

Carr vs. Lancashire, etc., Co., 21 L. J. Exch., 261; 7

Exch., 707.

The defendant offering its service to the public as a com-

mon carrier, and enjoying advantages and franchises as such ,

inust be ready to do the business of a common carrier, with

the measure of responsibility imposed by the common law ;

bat it may, at the same time, offer to do the same business

under a limited liability, the limitation being fair and rea-

sonable and resting upon a full consideration. An offer or

readiness to transport the goods of its customer with one or

the other degree of responsibility, it has been held, is as little

as can be required of any common carrier; less than this

does not present « bona fide, reasonable alternative.

L. & N. R. R. Co. vs. Gilbert, 42 Am. & Eng. R. R.

Cases, 372, 375.

It is not shown here, nor was it attempted to be shown,

that the plaintiff was offered any opportunity to choose be-

tween the two kinds of contracts—whether he would have

shipped his cotton at his own risk, at a lower rate, or at the

company’s risk, at a higher rate. He was told that the com-

pany had but one rate and but one kind of contract, which

of course deprived the shipper of any option or choice of his

own at all, and left him the alternative of either shipping

his cotton under such conditions as the company chose to

make or not shipping it at all.

It is the settied law that a carrier is not allowed to so

limit its liability as to exempt it from the consequences of

its own negligence or that of its servants.

N. Y. Central R. Co. vs. Lockwood, 17 Wall., 357-384.

The Tanbark, Federal Cases, No. 13742.

17

In New York Central R. Co. vs. Lockwood, 17 Wall., 357,

it is declared that a contract of exemption is valid only

where there is no negligence of the carrier. If this be the

law, before the latter can have the benefit of the exemption

it must show that the exemption falls within that class of

cases in Which its liability can be limited, This would re-

quire it to show affirmatively that it was guilty of no negli-

gence as a prerequisite to the exemption having any effect

whatever.

17 Wall., 357-384.

The burden of proof was on the defendant to show that

the exemption was given in the case where it was permissi-

ble, and this could only be done by proof that the defendant

itself was free from negligence, because, as to this, there could

be no exemption stipulated at all.

Inman vs. South Carolina R’w’y, 129 U. S., 128-1389.

Duvenick vs. Mo. P. R. R. Co., 57 Mo. App., 550-555.

Dillard vs. L. & N. R. R. Co., 2 Lea (Tenn.), 288.

Steele vs. Townsend, 37 Ala., 247.

In Louisiana the liability of a carrier for its own negli-

gence is an exception to the instances in which it can stipu-

late for the exemption from liability. It therefore must

show that the exemption stipulated has reference to a per-

missible case—that is, in which it had been guilty of no

negligence.

Maxwell & Putnam vs. S. R. R’w’y Co., 4 La. Aun.

Rep., 397.

Roberts vs. Riley, 15 La. Ann. Rep., 103.

This rule has been affirmed by some of the Federal

courts.

N. J. Steam Navigation Co. vs. Merchants’ Bank, 6

How., 383.

Seiler vs. Pacific Co., 21 Fed. Cases, No. 12644, p. 1042.

Ormsby vs. Union Pac. R. Co., 4 Fed. Rep., 706-712.

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The loss must be the proximate cause of the fire.

Condict vs. Grand Trunk R. Co., 54 N. Y., 500-504-

505.

Pierce vs. So. Pac. Co., 40 L. R. A., 350-354.

The fire in this case was not the proximate cause of the

loss of the cotton; this latter was the negligence of the de-

fendant in failing to take measures to guard or watch the

cotton and precautions against the occurrence of the fire,

and also in failing to provide sufficient means or assistance

to save the cotton, or a portion of it, after the fire began.

Moreover, if there was a failure to take measures to pre-

vent the fire in the first instance, this would be negligence

of the company, against which the exemption would not

apply ; if there wasa like failure to prevent the entire or

partial destruction of the cotton by fire, after it started, this

would be an intervening cause of damage, subsequent to the

commencement of the fire, and, hence, would not be the

proximate cause of the loss.

The delivery here to the defendant was complete, so far

as to subject defendant to all of the liabilities of a common

carrier.

St. Louis, ete., Co. vs. Murphy, 60 Ark., 333 (305. W.,

419).

Dixon vs. Ga. Central R. Co., 110 Ga., 173 (35S. E.,

369).

1. ©. R. Co. vs. Smiser, 38 Il, 354.

Greenwood vs. Cooper, 10 La. Ann. Rep., 796.

Barrett vs. Salter, 10 Rob. (ua.) Rep., 424.

Fitchburg, ete., Co. vs. Hanna, 6 Gray (Mass.), 539.

19

The burden of proof was on the defendant here to show

that it was free from negligence in order that the exemption

relied upon can be given effect.

South., ete., Co. vs. Henlin, 52 Ala., 606 (23 Am. Dec.,

598).

Adams Express Co. vs. Stetaners, 68 III., 184 (14 Am.

Dec., 457).

‘Texas, etc., Co. vs. Richmond, 94 Tex., 571 (63 5. W.,

(19).

It has been decided that a special contract exempting the

carrier from liability in specified instances is to be made use

of by the carrier for any alleged dereliction of duty, against

which it is designed to afford protection.

So. Pac. R. Co. vs. Arnette, 111 Fed. Rep., 849-852. ;

In the preseut case, however, assuming that it was not

the duty of the defendant to first prove itself free from

negligence in order to show that the contract of exemption

was operative as being made in an instance in which the

law did not forbid it, the condition of the eviden ~ unques-

tionably shows that the plaintiff was entitled to go to the

jury at least on the question of defendant's negligence, which

was established beyond a doubt; it appears that the cotton

was loaded into box cars of the defendant, sent by it ex-

pressly to the switch in an open field, for the purpose of re-

ceiving the cotton for carriage ; that at this point, where the

cotton was laden, the defendant maintained no station and

kept no agent, or other representative; that the cars con-

taining the cotton were thus left unwatched, unguarded,

and there is no claim of any care being taken by defendant to

protect the cars and cotton from depredation, and that the

cotton was left in this condition, uncared for, from five

o'clock in the evening until about ten o'clock in the night,

when it was discovered, with the cars, to be on fire ; the cotton

was in the possession of the company at the time, as is un-

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questionably shown by its bill of lading, previously issued ,

and as would manifestly result from the fact of its being

loaded under the circumstances.

In Louisiana, where the transaction occurred, it has been

decided that a carrier, under conditions shown by the evi-

dence here, was guilty of negligence; thus :

In Fischer vs. Brig Norvall, 8 N.S.(Martin’s La. Rep.), p. 120,

it was held that where cotton wassent by plaintitfs to beshipped

on board a vessel, received late in the evening, suffered to re-

main on the levee during the night of delivery and was con-

sumed by fire, that the carrier was responsible for the value

of the cotton; that although the cotton had been received late

in the evening, defendant having received and receipted for

it, its responsibility must be governed by the same rules as

if it had been delivered early enough to put it on board the

same day ; proof that it was customary to leave cotton exposed

on the levee without any person to watch it was not a good ex-

cuse for the carrier; such a custom could not control the

law and would not be recognized by the courts of justice.

In Barrett vs. Salter, 10 Rob. Rep. (La.), 434, it was held

that where a carrier receipts for goods left on the levee they

are as much: at his risk as if actually laden on board of the

vessel, and that tne latter would be responsible for any

damage sustained by the goods while left in such condition ;

that from the moment the carrier receipted for the property

in good order the ship became responsible for any damage

subsequently discovered. (See page 437.)

The case of Fischer vs. Brig Norvall, 8 N.S. (Martin’s La.

Rep.), p. 120, was quoted approvingly by the supreme court

of Louisiana in 1896, in the suit of Maxwell & Putnam vs.

Railroad Co., 48 An. (La.), p. 399.

All ihat is declared by Fischer vs. Brig Norvall was re-

affirmed in Darrell vs. Southern Pacific, 47 An. (La.), p.

1455.

In Roth vs. Harkson et al., 18 Annual (La.), 705, cotton

was delivered on the levee to be laden on board a vessel for

21

shipment; the vesse! declined to receipt for the cotton on

account of the late hour of the day; the cotton was lost and

the ship was sued for it; it was held liable, and it was de-

clared (page 706) that the cotton had been unloaded upon

the wharf, covered with a tarpaulin, under the instructions

of the mate, the captain, or the clerk ; that in this condition

the cotton was received by the carrier and in charge of the

vessel ; that the delivery was consummated and could not be

recalled ; that the ship had incurred the obligation imposed

upon carriers and watermen ; that the plaintiff had parted

with his possession as custodian of the cotton by delivering

the same to the brig ; that it thereafter became a matter be-

tween the brig and the employer of plaintiff, the owner of

the cotton.

And to the same effect is the law outside of the State of

Louisiana.

The liability of a carrier commences whenever and as

soon as the goods have been delivered to and accepted by

him, solely for transportation, although they may not be

put immediately in itinere, but are at first, for his own con-

venience and preparatory to the voyage or journey for which

they are intended, temporarily deposited in his wharf or

storeroom; in such cases the deposit is a mere accessory to

the carriage, and does not postpone his liability as a common

carrier to the time when they shall be actually put in mo-

tion towards their place of destination.

Hutchinson on Carriers, sec. 89, citing 6 Gray, 539.

If the delivery be made at the warehouse of the carrier

for as early transportation as can be made in the course of

the carrier’s business, and subject only to such delays as may

occur in awaiting the departure of trains, the railroad be-

comes, the moment the delivery is made, a carrier as to the

goods, and its responsibility as such attaches at once.

Hutchinson on Carriers, sec. 89, citing Wade vs.

Wheeler, 47 N. Y., 658.

Grand Tower Co. vs. Ullman, 89 IIl., 244.

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If the parties agree that the goods may be deposited for

transportation at any particular place, without express notice

to the carrier, such deposit will be sufficient delivery ; and

proof of a constant and habitual practice of the carrier to

receive goods when they are deposited for him in a particu-

lar place without special notice of such deposit is sufficient

to show a public offer by the carrier to receive goods in that

mode, and to constitute an agreement between parties by

which the goods, when so deposited, shall be considered as

delivered to him without further notice; and delivery upon

a private wharf or dock upon which it has been the carrier’s

custom and constant usage to receive goods left there for

transportation is considered as a sufficient delivery, though

the goods were not left in charge of any of its servants.

Hutchinson on Carriers, sec. 90.

The responsibility of the carrier is in complete existence

from the time delivery is made.

Hutchinson on Carriers, sec. 94.

If the carrier negligently places or leaves goods in a place

of danger, he cannot by a stipulation exempt himself from

liability for loss by fire.

MeFadden vs. Railroad Co., 92 Mo., 3438.

It is quite evident that the defendant incurred the ob-

ligations of a carrier when the cotton was loaded upon its

cars, with its consent, for the purpose of being transported

to New Orleans. Surely its liability commenced at 4 o'clock

in the evening, when it delivered to plaintiff's agent its bill

of lading for the cotton. The duty to safeguard the cotton

after it came into the possession of the defendant was as

much a part of its duty as its conveyance and delivery.

Whenever the situation or condition of the goods is such as

to require special care or attention the carrier must do for

them all that might be reasonably expected from a prudent

23

and careful person, or, if he chooses to do otherwise, it is at

his risk, which he is considered as voluntarily assuming by

his failure to exercise requisite care and caution. His duty

being to safeguard the goods, he must to this end do all that

is made necessary by their situation or condition, and, if he

fails to do this, must be considered as assuming the risk of

all the resulting perils. If the goods are exposed to danger

of any kind he must afford protection against such danger,

and if he has taken no steps towards furnishing protection

he assumes the responsibility for all dangers that might

have been avoided by proper care and diligence.

The circuit court was of the opinion that defendant was

exonerated from all risk of leaving the cotton in its exposed

condition, because the shipper had full knowledge of the

situation in which it was left; that the plaintiff having

voluntarily submitted his goods to a danger well known to

him, he could not, under the circumstances, recover; it must

be considered that the plaintiff also knew that the cotton was

left where it was, not at his own risk, but at that of defend-

ant, and, if the latter chose to take no measures for its pro-

tection, that it would be responsible to him for any loss or

damage to the cotton which it had engaged to safely carry

from Meeker’s Switch, and to deliver it in good order to

plaintiff in New Orleans; no case can be imagined where

the shipper was without knowledge that the carriage of

his property would be accompanied with some risk, yet,

under the ruling of the circuit court, in any case where the

shipper has such knowledge, he cannot recover from the

carrier, no matter however gross the negligence of the

latter might be; if the plaintiff had left the cotton

where he did, at his own risk of any danger of fire, he

would presumably have taken some steps to protect it, for

instance, by having it guarded or watched; but knowing

that as soon as the cotton passed into the possession of the

defendant by being loaded on its cars at 2 o’clock in the

evening, or by the issuance of its bill of lading at 4 o’clock,

1835

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it was no concern of his if by defendant’s want of care the

cotton was lost or destroyed. Surely the plaintiff was

charged with no duty concerning the safeguarding of the

cotton after it came into defendant’s possession. If the com-

pany chose to leave the cotton unprotected, it may have con-

sidered this was unnecessary or more expensive than it

would have been to have had it guarded. It assumed the risk

by leaving the cotton unprotected ; it had the right to do so

if it so desired. The cotton itself was of no more value to

plaintiff than the responsibility of defendant for its value,

and such was its liability as soon as the cotton was received

by it. Defendant’s knowledge that the cotton was left ex-

posed was accompanied with the further knowledge that if

lost or destroyed in consequence of this condition that de-

fendant would owe him its value. If his consent to leave

the cotton where it was is to be inferred, this inference would

fairly and logically include, as a condition or a consequence,

that defendant would be liable for the cotton if it were lost

by its failure to properly protect it; in other words, if lost

by its negligence.

The judgment of the circuit court should be reversed.

Respectfully submitted.

Brancu K. MILLER,

WILLIAM S. PARKERSON,

Attorneys for Plaintiff in Error.