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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Plaintiffs Brief
- **Published:** January 1, 1904
- **Citation:** 194 U.S. 432

## Text

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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

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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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6

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.

11

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

—_—

13

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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15

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.
3

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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,

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0499%3A2. Public record. Not legal advice.