SOMERVILLE, J.
(1) The act of Congress known as the Carmack Amendment of the act of June 29, 1906 (Fed. St. Ann. Supp. 1909, pp. 273, 274), although it prescribes and extends the liability of initial carriers of interstate shipments, does not abrogate nor in any way impair the separate liability of terminal or delivering carriers for losses occurring on their own lines, as fixed by the statutes or decisions of the several states. That act makes the initial carrier responsible for the safe delivery of shipments over connecting lines, no matter where the,loss may occur, but it certainly does not exempt connecting lines from direct responsibility to the owner for their own failure to safely carry and deliver goods received by them for that purpose.
(2) This being the liability of defendant in this case, the burden was on plaintiff to show that his goods were lost, or diverted while in the custody of defendant.
(3) By showing defendant’s delivery to him. of a part of the original shipment, a presúmption arose of its receipt by.defend-, ant in the same condition as when delivered 'to the initial or a preceding carrier, which imposed upon defendant the burden of showing that missing goods were, not lost 'while in its custody.—South. Exp. Co. v. Saks, 160 Ala. 621, 49 South. 392.
*24With respect to the missing case, we are of the opinion, on the undisputed evidence, that defendant fully discharged this burden, and that the jury should have been instructed, as requested, that plaintiff could not have of defendant any recovery therefor. This conclusion cannot, however, be affirmed as to the contents of the recoopered box, and the time and place of their loss was a question for the jury under the evidence. The charge which affirmed the liability of the initial carrier and the exemption of. defendant, regardless of where the goods were lost, was properly refused.
The other special charge (1) correctly stated the law as to the liability of connecting carriers, but, as it was fully covered by other given charges, its refusal was not error.
(4) The declaration of the Hartselle depot agent that the goods were short and that they would come in the next day or two was but hearsay, and was not admissible as a verbal act within the scope of a duty then being performed. It should have been excluded, though its erroneous admission might not alone be a reversible error in this case.
Let the judgment be reversed, and the cause remanded.
Reversed and remanded.
Anderson, C. J., and Gardner and Thomas, JJ., concur.
ON REHEARING.
SOMERVILLE, J.
(5) On the original hearing we held that defendant had overcome the presumption that the missing case of goods came into its possession as carrier; this because defendant’s checking clerk at Birmingham testified to that effect. Upon a careful consideration of his entire testimony, however, it appears that he did not know the fact stated, since he did not see the seal clerk break the car seal, and did not know how long it had been broken before he checked the contents of the car and discovered that a case was missing; thus leaving an interim during which so far as appears, the case may very well have been abstracted from the car while in defendant’s custody at Birmingham. Such an inference we now think it was within the province of the'jury to draw, and we are impelled therefore to' hold that the affirmative charge for defendant as to liability for this case, was properly refused.
(6) While we still hold that the admission of the declaration of the depot agent at Hartselle was technically erroneous, yet we *25are convinced that its admission could not and did not influence the jury in arriving at their verdict, and we will not reverse the judgment for that insignificant error.
It results that the application must be granted, and the judgment of reversal set aside, and the judgment appealed from will be now affirmed.
Affirmed.