60 Miss. 1017 | Miss. | 1883
delivered the opinion of the court.
A common carrier may, by special conti-act, stipulate for exemption from the liability imposed by the common law, but
The burden is on the carrier relying on a contract stipulating for a restricted liability to prove it, if it is not proved by the other party, and to show that the injury complained of resulted, without fault on the part of the carrier, from some cause excepted by the contract. The carrier in such case must show, at least prima facie, that the injury did not result from neglect. It would then devolve on the other party to produce evidence to fasten blame on the carrier for the injury. If it appeared that the injury was excepted by the contract, and that no want of care and diligence on the part of the carrier in the particular case contributed to the injury, the loss should fall on the shipper according to the stipulation of the contract.
The carrier must show a full performance of duty with respect to what was shipped, according to its nature, and when that showing is made, and that the injury was from an excepted cause in the contract, liability cannot be fixed on the carrier, except by proof of a want of due care and diligence. What is due care and diligence by the carrier must depend on circumstances, and the nature of the article shipped.
In case of injury to living animals, which may be caused by each other or by the inherent liability to sickness and death or self-inflicted injury In close confinement, if the carrier does all towards their safe carriage which should be done, and still injury results, no responsibility should be fastened on the carrier.
In this case the car was suitable, and the road-bed good, and the transportation speedy and safe, so far as respects the delivery at Durant of the car containing the mule and horses. There is no imputation on the capacity or vigilance of the employees on the train. Thei’e is evidence that the mule was found “ down ” in the car at Water Valley by the conductor who “ got it up,” and the testimony shows that, at each stop between that point and Durant, observation was made to see
There is evidence that the mule was down about the time of the arrival of the train at Durant, and was trampled by the horses. There is nothing to show when the mule was prostrated nor from what cause. It may have been sick and unable to stand, or preferred a reclining posture, or it may have been overborne by the horses resenting the unequal association with an inferior animal in the close contact of the crowded car. Certainly, there was nothing surprising in the misfortune of the mule, and nothing calculated to suggest any dereliction of duty by the carrier with respect to it.
The court refused to instruct the jury that the plaintiff could not recover, because of his failure to give notice in writing to the agent of the carrier of his claim for damages, there being a stipulation in the contract.of shipment that a condition precedent to the right to recover for any injury was notice in writing, “ before said stock is removed from the place of destination * * * and before such stock is mingled with other stock.” Whatever view may be taken of such a stipulation in other circumstances, it was proper in this case to refuse to make the right of the shipper to recover to depend on compliance with the requirement of notice of his claim, as specified in the contract. It does not appear that there was any removal of the mule from Durant, which ivas the “ place of destination,” or that there was any mingling with other stock, in the sense of the stipulation, and the station agent of the carrier at Durant was present when the mule hobbled out of the car at the place of delivery.
The court did right to refuse to instruct the jury that the limit of the plaintiff’s right of recovery was one hundred dollars. The contract contains a stipulation that, “ should damage occur, * * * the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, for a stallion or jack, $200 ; for a. horse or mule, $100; cattle, $30 each; other animals $15
If in fault, the carrier should make compensation by paying the damage done, and should not be allowed to stipulate in advance for a diminished liability below the real loss sustained by the fault which creates liability. To allow that would defeat the politic rule against stipulating for exemption from the consequences of negligence or misconduct.
We find no fault with the action of the court on the instructions, but because of the allowance of an attorney’s fee, the judgment will be reversed, and, under our view of the .evidence, we decline to permit final judgment here on a remittitur of the attorney’s fee, and remand the case for a new trial.