Whitfield, J.,
delivered the opinion of the court.
It is competent for a railroad company to contract with a shipper restricting its common law liability as an absolute insurer, and exempting itself from liability for a fire accidental, and, as to the action of its employes, non-negligent. But such contract must be “deliberately and fairly assented to” by the shipper, and though so made, the carrier is still liable, unless it meets the burden on it of showing that the lire was not due to its negligence, in any degree, however slight, since it is against *308public policy as to public carriers to permit contracts against any negligence on their part. It is immaterial that the amended declaration sought to charge the appellee with common law liability as an absolute insurer. Under such a declaration, failure of proof to negative negligence on appellee’s part, leaves it liable, because in such case, though the plaintiff may not show liability as an insurer, he does the lesser liability for negligence, embraced in the greater absolute liability as an insurer. The greater includes the less. He alleges a greater liability than he proves, but he does prove a liability — when the carrier fails to meet the burden of showing loss from the excepted cause, by negativing loss from its negligence — less than, but embraced in, that alleged. This is the clear result of our decisions. Weiner v. Railroad Co., 49 Miss., 725" court="Miss." date_filed="1874-04-15" href="https://app.midpage.ai/document/mobile--ohio-railroad-v-weiner-7984371?utm_source=webapp" opinion_id="7984371">49 Miss., 725; Railroad Co. v. Faler, 58 Ib., 911; Railroad Co. v. Moss, 60 Ib., 1011; Express Co. v. Moon, 39 Ib., 822.
The solution of this case is thus — conceding the special contract to be void, as to which we say nothing now — resolved into the single question, whether there was evidence that there was negligence on the part of appellee as to the origin of the fire, or in extinguishing it, which required the submission of the case to the jury, and we think there clearly was such evidence.
Reversed, verdict set aside and remanded.