41 Minn. 510 | Minn. | 1889
At Minneapolis plaintiff delivered to defendant, a common carrier, 18 horses, to be by it transported upon its railroad from Minneapolis to Ashland, Wis. The evidence tends to show they were in good condition when they were so delivered, and that in the course of transportation two died, and several others were injured. The action is to recover damages. On the trial, at the close of the plaintiff’s evidence, the court dismissed the action. On plaintiff’s motion it afterwards ordered a new trial, and from that order this appeal is taken.
But we will say in passing that, wherever the burden of proof lay, the case ought to have gone to the jury, for there was evidence from which the jury might have found that the injury to the horses was caused by the negligent manner in which defendant’s train was handled. It appears that with the full train, without detaching any of the cars from the engine, those in charge “ bucked snow,” as it is called. As a witness described it, “ they would take a running jump at a snow-drift.” And this appears to have caused so violent shocks that, as a witness testified, one could not stand, and could hardly sit, in the caboose, which seems to have been at or near the rear of the train, while the car in which the horses were was pretty well up in front, where the shocks would be more violent. It ought to have been left for the jury to say whether that was the way in which the train was managed; whether that was a prudent way of managing a train carrying live-stock; and whether the injury to the horses was
But, because the court below seems to have granted á new trial for the reason that on the trial it misapprehended the rule as to'the burden of proof as to negligence, we will consider that question. The contract, in terms, exempts the defendant from liability for damages, except such as might result from collision or the cars being thrown from the track. This goes further than the law permits a common carrier to go in limiting his liability. Since the Christenson Case,— Christenson v. Am. Express Co., 15 Minn. 208, (270,) — it has been settled by judicial decision in this state that a common carrier cannot exonerate himself by contract from liability for his own negligence, and this rule is now recognized by statute. Laws 1885, c. 188, § 26. The most favorable construction for the defendant which could be given to this contract would hold that it exempts it from liability for damages from any cause but its own negligence, and collisions, and the cars being thrown from the track. In Shriver v. Sioux City & St. Paul R. Co., 24 Minn. 506, the contract attempted to exempt the carrier except for gross negligence. The court held it went further than the law allowed, and treated it as a contract exempting the carrier except for negligence of any degree.
.The rule as to the burden of proof held in that case is applicable to this; and upon further examination and consideration we are satisfied that,the rule is justified by reason and public policy. The common law excepts from the carrier’s liability loss or damage caused by act of God or the public enemy. No one would contend but that, where the common-law liability is not varied by contract, the carrier, to excuse himself, must show that the loss or damage was within one of the exceptions to his liability; that it was caused either by the act of God or of the public enemy. Such proof would make a prima facie case of non-liability. The plaintiff might then show that, but for the carrier’s negligeneé, the loss or damage would not have occurred though caused apparently by one of the excepted causes. The reason why proof of loss by the act of God or the pub-
Order affirmed.