The opinion of the Court was delivered by
Mr. Chief Justice McIver.
The plaintiff brought this action to recover damages from the defendant company, sustained by reason of the killing of some and the injury of others of certain cattle shipped by plaintiff upon the cars of said company. There were three shipments, one from Ridgeway, in this State, made on the 3d of March, 1898; one from Winnsboro, in this State, made on the 17th of March, 1898, and the other from the city of Columbia, in this State, also made on the 17th of March, 1898. By the bills of lading the defendant contracted to' carry to- and deliver at the city of Richmond, in the State of •Virginia, each of these shipments, copies of which are set out in the “Case” —one of which (they all being of similar tenor) should be incorporated by the Reporter in his report of this case. The jury having rendered a verdict for the plaintiff, upon which judgment was entered, the defendant appeals, basing his appeal on the several exceptions set out in the record. These exceptions should likewise be set out in the report of this case.
*1451 *144The first exception imputes error in the admission of the testimony of the witness, Owens, and the-plaintiff, as to certain remarks made by the engineer at Ridgeway, when the *145plaintiff was putting the cattle on the train. It appears from an examination of the “Case” at the point where the ruling objected to was made, that while-the plaintiff was engaged in loading the car with the cattle,, that the engineer, who had charge of the locomotive by which the train to which the car was attached was run, came back to the platform where the loading was going on and said, “he would kill those damn cattle before he got to- Char-' lolte.” The ruling of the Court in admitting the testimony, was based upon the ground that, being the agent of the company to run the engine, any declaration that he may have made as to the manner in which he intended to- perform that duty, was competent. In that view of the matter we think there was no error in the ruling, for it is well settled that the declarations of an agent, within the scope of his agency, are the declarations of his principal, and are, therefore, competent. 1 Greenl. on Ev., secs. 113, 114. If so, then the testimony was not hearsay, and the objection upon that ground cannot be sustained. If the objection is based upon the ground that the principal is not liable for the wilful or malicious conduct of the agent (though that point is not distinctly brought out in the exception), the case of Hart v. Railroad Co., 33 S. C., and the cases cited at page 436, show that such a point is untenable, where, as in this case, the conduct referred to is within the scope of the agency. The case of Piedmont Manufg. Co. v. C. & G. Railroad Co., 19 S. C., 353, cited and relied upon by counsel for appellant, is not in point, for the declarations there were made after the event and not within the scope of the agency. In that case the rule, as we have laid it down, was distinctly approved, for the late Chief Justice Simpson, in delivering the opinion of the Court, says, speaking of the rules of evidence in relation to the admissibility of the declarations of an agent to bind the principal: “These rules would -allow such declarations'when constituting a part of the res gestae, or when made within the scope of the agency, but declarations made some time after' the act and beyond the scope of the agency should *146not be allowed.” ' But here the declarations in question were .a part of the res gestae, made by the person intrusted with '.the duty of running the train which carried the cattle, while the train was being loaded with the cattle. The first exception must, therefore, be overruled.
2 ' Exceptions 2, 3 and 4, being of a somewhat kindred character, will be considered together. In the first place, we would remark that we do not think that these exceptions correctly represent the ruling of the Circuit Judge as to' the testimony objected to. For example, we do not understand that the plaintiff was permitted to testify “as to what was the shrinkage (we suppose the word shortage would more properly express the idea) upon the cattle from written statements made to him by others,” as stated in the second exception, nor do we understand that the plaintiff was permitted “to estimate the value of missing cattle by comparison of the weight of the car load lot at place of shipment with the account sales of the cattle as rendered by the dealer making- sale at place of destination,” as stated in the third exception. On the contrary, the ruling of the Circuit Judg'e as to this matter of shrinkage, as it is called, was as follows: “I think, if he is a cattle dealer and accustomed to- ship cattle from South Carolina to- Richmond, .-and if he knows what the natural shrinkage was in transitu ■from a long course of dealing, he would be familiar with -those matters.” Whereupon defendant’s counsel interposed, saying: “I obj ect, upon the ground that the witness •must testify of his own knowledge of shrinkage. The 'Court: Fie cannot testify what others told him; he can testify what, in his judgment, cattle shipped from South Carolina to Richmond would lose. Defendant’s Counsel: What they would lose from our negligence? The Court: Oh, no, sir.” Again, the witness having stated that he knew the weights of the cattle when they left Ridgeway, was asked: “Do you know what you were paid for them when they were sold in Richmond?” replied as follows: “Yes, sir, and the weights.” After some colloquy between the Court and *147counsel as to whether the witness could speak of the weight of the cattle when sold in Richmond, the Court ruled that it was not competent for the witness to testify as to what anybody else told him the cattle were worth, but that it was competent for him to say, “for what weight of cattle he was paid out of the shipment.” The same objections and the same rulings were made in regard to the testimony as to' the shipment made from Winnsboro. So that it appears that the Circuit Judge did not rule as imputed to him in the second and third exceptions, but that his ruling was that the witness could only testify as to what he knew from his own knowledge and not as to what he heard from others, either verbally or through written statements made to him; at most, he only held that the witness could state as “a naked fact” — to use the Judge’s language — what he received from the sales of the cattle in Richmond, but not what were the weights there, and what, from his experience in shipping cattle to Richmond, would be the natural shrinkage in transitu — a point not mentioned in the exceptions. These two exceptions must,' therefore, be overruled. •
3 So, also, as to the 4th exception, which relates to the Columbia shipment — we do not understand that the Circuit Judge ruled as is there imputed to- him. The witness having testified that this was a very fine lot of cattle, was asked to fix the value of the two that were missing from that lot, by estimating the value of any two average cattle in that lot; but the Court ruled that he could not take “any two, 'but the two 'of least value.” It may be and doubtless is true, that the witness, in testifying, went beyond the ruling of the Circuit Judge, but that was an error to be rectified, not by an exception to the ruling, but by a motion to strike out so much of the testimony as. went beyond the ruling of the Circuit Judge, and it does not appear that any such motion was made. The 4th exception must, therefore, be overruled.
*1484 *147The 5th and 9th exceptions may be considered together. The Circuit Judge, practically, instructed the jury that not*148withstanding the clause in the special contract, whereby the owner should assume the duty of loading the cars with these animals, -the defendant would still be liable for any damages occasioned by overloading the cars, because by special statute (Rev. Stat. 1893, sec. 1678), it is declared that: "No railroad company, in the carrying or transportation of animals, shall overload the cars,” as no railroad coihpany can claim exemption under one of the provisions of a special agreement which “is in derogation of the mandates of the statute.” To this instruction two errors are assigned. 1st. That it is based upon an improper construction of the statute. 2d. That even if the statute was properly construed, it cannot be applied to the present case, involving interstate shipments, because (exception 9) it is in conflict with the provision in sec. 8, art. I., of the Constitution of the -United States,' investing Congress with the power: “To- regulate commerce with foreign nations and among the several States, and with the Indian tribes,” usually spoken of as the interstate commerce clause of the Federal Constitution. As to the first error assigned, we would remark, in the first place, that the rule is well settled that it is the duty of a railroad company, as a common carrier, to load its cars with all freight entrusted to- it for transportation. As is said in 5 Am. & Eng. Ency. of Law, 2d edit., at page 189: “The duty of loading freight of any kind upon the cars rests, primarily, upon the carrier.” This is a reasonable and proper rule for the protection both of the shipper and carrier, for it must be assumed that the agents and servants of the carrier are much -better acquainted with the nature and capacity of its cars, and have more skill in properly- loading the cars than the shipper. This being so, it must be assumed that the legislature, in using the language found in the statute, recognizing the well settled general rule, intended to forbid railroad companies from violating this primary duty, and imposed a penalty for such violation^ It is contended, however, that by the terms of the special contracts under which these animals were shipped, the plain*149tiff expressly agreed to assume the duty of loading the cars at his own risk, and released the defendant from any liability occasioned by injuries or losses resulting from overloading the cars. This is -true, except that the plaintiff did not exclusively assume this duty, for the terms of the contract are “that the said owner and shipper is to load, transfer and unload said stock (with the assistance of the company’s agent or agents) at his own risk;” and the testimony tends to> show that the plaintiff was assisted by the agents of the company in loading the cars. But waiving this,' and assuming that the cars were loaded exclusively by .the plaintiff, his servants or agents, the practical question presented is whether a common carrier — a railroad company — can relieve itself from liability for damages resulting from injuries to or losses of cattle entrusted to it for transportation, occasioned by overloading the cars in which such cattle was being transported, by such a special contract as that relied upon in this case. It is not and cannot be denied that, in this State at least, a common carrier may, by special contract, limit his common law liability, provided always that he does not thereby undertake to exempt himself from liability for his own negligence. Swindler v. Hilliard, 2 Rich., 286; Baker v. Brinson, 9 Rich., 201, and Wallingford v. Russell, 26 S. C., 258. So that the inquiry is narrowed down to- the question whether the provisions in these contracts, exempting the defendant from liability for the consequences of overloading the cars, is not, practically, an attempt to exempt itself from liability for its own negligence. If, as we have seen, it is the primary duty of the carrier to load freight of any kind entrusted to it for transportation; and if, as was held in Hannibal Railroad v. Swift, 12 Wall., 262" court="SCOTUS" date_filed="1871-11-20" href="https://app.midpage.ai/document/hannibal-railroad-v-swift-88389?utm_source=webapp" opinion_id="88389">12 Wall., 262, the liability of a common carrier is not affected by the fact that the car is loaded by t'he owner of the goods entrusted to it for transportation, for upon him rests the duty to see that the packing and conveyance are such as to secure its safety, and the consequences of his negligence in these particulars cannot be transferred to the owner of the property, it would seem to follow, necesL *150sarily, that the provision in these contracts exempting the defendant from the consequences of overloading the cars, is an attempt to exempt defendant from liability for negligence in performing its own duty, and cannot, therefore, avail the defendant anything, even if there were no statute forbidding a railroad company from overloading its cars with live stock. Under this view, it is scarcely necessary for us to consider the second error above imputed to the Circuit Judge by the 9th exception. But as the Circuit Judge based his charg-e 5 largely, if not exclusively, upon the provisions of sec. 1678 of the Rev Stat., and held, expressly, that such statute, was not affected by the interstate commerce clause of the Federal Constitution, it may be proper that we should inquire whether he erred in this respect. The question as to the scope and effect of this famous clause has been considered in a great many cases decided by the Supreme Court of the United States — the. final arbiter of such a question. We do not deem it necessary, in this case, to' consider the question at any length; 'but propose to> state, briefly, some of the reasons why the Circuit Judge, in our opinion, did not err in the view which he took. In Covington &c. Bridge Co. v. Kentucky, 154 U. S., at page, 209, it is said by Mr. Justice Brown, in delivering the opinion of the Court: “The adjudications of this Court with respect to the power of the States, over the general subject of commerce are divisible, into three classes: first, those in which the power of the State is exclusive; second, those in which the State may act in the absence of legislation by Congress; third, those in which the action.of Congress is exclusive, and the States cannot interfere at all.” It is not true, therefore, as seems sometimes to be supposed, that any State legislation which affects interstate commerce is in conflict with the Federal Constitution, , and, therefore, void. On the contrary, it is well settled by the cases cited in the Covington Bridge &c. Co. v. Kentucky, supra, that the mere fact that a State statute may incidentally affect interstate commerce, is not conclusive of the question. . One very, recent case, *151although many others might be cited, will 'be sufficient to show this. In Chicago &c. Railway v. Solan, 169 U.S., 133" court="SCOTUS" date_filed="1898-01-17" href="https://app.midpage.ai/document/chicago-milwaukee--st-paul-railway-co-v-solan-94807?utm_source=webapp" opinion_id="94807">169 U. S., 133, it was held that a statute of a Stateproviding that no contract shall exempt any railroad corporation from the liability of a common carrier, or carrier of passengers, which would have existed if no> contract had been made, does not, as applied to a claim for an injury happening within the State under a contract for interstate transportation, contravene the provision of the Constitution of the .United States, empowering Congress to regulate interstate commerce. The case was this : the plaintiff, while traveling in the caboose of a freight train of defendant upon which his cattle were being transported, under a special contract, was injured by reason of defendant’s negligence, and brought his action for damages. One of the defenses set up was that by a clause in the special contract under which plaintiff and his cattle were carried, it was, among others, agreed, that in consideration of a reduced rate of charges, “the company shall, in no event, be liable to the owner or person in charge of said stock for any injury to his person in any amount exceeding the sum of $500.” The plaintiff obtained a verdict for $1,000, and the case was eventually carried to the Supreme Court of the United States, where the only question was whether the statute of Iowa, in which State the injuries were received, was in conflict with the interstate commerce clause of the U. S. Constitution, it being conceded that the shipment of the cattle was an interstate shipment. Regarding that case as practically identical, in principle, with the case under consideration, we quote liberally from the opinion of the Court, delivered by Mr. Justice Gray: “Railroad corporations, like all other corporations and persons doing business within the territorial jurisdiction of a State, are subject to its law. It is in the law of the State that provisions are ho be found concerning the rig'hts and'duties of common carriers of persons-or of goods, and the measures by which injuries resulting from their failure to perform their obligations may be prevented or redressed. Persons traveling on interstate *152trains are as much entitled, while within a State, to the protection of that State, as those who travel on domestic trains. A carrier exercising his calling within a particular State, although engaged in the business of interstate commerce, is answerable, according; to the law of the State, for the acts of non-feasance or of mis-feasance committed within its limits. * * * It is equally within the power of the State to prescribe the safeguards and precautions foreseen to be necessary and proper to prevent by anticipation those wrongs and injuries which, after they have been inflicted, the State has the power to punish and redress. The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property, otherwise endangered by, their use, are strictly within the scope of the local law. They are not, in themselves, regulations of interstate commerce, although they control in some degree the conduct and liability of those engaged in such commerce. So* long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to' regulate the rights and duties of all persons and corporations within its limits.” Exceptions 5 and 9 must, therefore, 'be overruled.
6 The exceptions numbered 6 and 8 may be considered, together. They both proceed upon the assumption that inasmuch as by the terms of the special contract it was agreed that the shipper or his agent should ride on the freight train by which the cattle were transported, and look after the loading and unloading of the same in transitu, this relieved the carrier from doing so, and, therefore, if the cattle sustained any injury by reason of the failure to perform these duties, the company would not be liable. But, as was held in Comer v. Railroad Co., 52 S. C., 36, the assumption is untenable, because it ignores the express provision of the section of the Rev. Stat. above referred to, which requires the railroad company to perform these duties, *153if the owner or shipper fails to do> so. While, therefore, it may be true that the Circuit Judge overlooked that provision of the special contract which required the shipper or his agent to ride on the train by which the cattle were transported, yet such error was entirely harmless, for, as we shall presently show, the burden of proof was upon the defendant to show that the injuries complained of were the result of the default of the plaintiff and not due to its own negligence. These exceptions must, therefore, be overruled. It only remains to consider the 7th exception, which presents the question as to which party must take the burden of proof in a case like this. Counsel for appellant very properly concedes that this question is concluded by the cases of Swindler v. Hilliard, 2 Rich., 286, and Wallingford v. Railroad Co., 26 S. C., 258, to which might have been added the cases of Baker v. Brinson, 9 Rich., 201, and Johnstone v. Railroad Co., 39 S. C., 55. But he contends that the reason of the rule laid down in those cases “is that the injury and manner of injury are supposed to be known only by the carrier and his servants, the owner being supposed not to know anything about it; and that as such reason does not exist in this case, where the shipper or agent is required to ride on the train and look after the cattle while in transitu, the rule should not be applied to this case.” But the reason stated is not t'heonly reason for the rule. From what is said in Baker v. Brinson, it is apparent that the Court rested its conclusion also upon the ground that the contract for exemption from liability from injury resulting from certain specified causes does not affect the general character of the carrier, and only extends the grounds upon which he may claim exemption, beyond those which the common law alone recognizes — the act of God, or the public enemy; and in the absence of any special contract, the carrier must show that the injury resulted from one of those two causes, and the burden of proof is upon him to show this. Upon the same principle, where there is a special contract extending- these causes of exemption, the burden of proof is upon the carrier to show that the injury *154complained of resulted — not from his own negligence — but from one of the causes mentioned in the special contract. Besides this, in both Wallingford v. Railroad Company and Johnstone v. Railroad Company, there was a special contract providing that the .shipper or his agent should be furnished free transportation on the train by which the live stock was transported, and the Court did not seem to think that circumstance affected the rule. It is true, that the contracts in neither of those cases required, but only permitted, the shipper or . his ag-ent to ride upon the train by which the live stock was transported, while the contract in this case does require the shipper or his agent to- ride on the train which carried the cattle; but we do not think that this circumstance should have the effect of changing the well settled rule; more especially when, as we understand the testimony, this requirement was not complied with in this case, and the statute expressly required the railroad company to look after the cattle if the owner failed to do so. The 7th exception must, therefore, be overruled.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.