88 Tenn. 653 | Tenn. | 1890
Tbe defendants in error shipped from Memphis, Tenn., to Manchester, N. II., two hundred bales of cotton, upon a through bill of lading issued by the Louisville and Nashville Railroad Company, containing usual clause exempting the carrier from liability for loss by fire.
By an amended declaration the Manchester Mills alleged that a part of this cotton had been lost after delivery to the carrier, ■ through fire originating in the fault and negligence of the plaintiff in error, and that on account of this loss it had •received $625.28 from the Insurance Company of North America, of Philadelphia, which had a policy on said cotton, “ wherefore they sue for the use of the insurance company.”
There was a verdict and" judgment against the railway company.
A contract exempting the carrier from liability for a loss by fire not due to negligence, and based upon a sufficient consideration, the shipper having the right to elect between a liability with or without the fire clause, is valid. Dillard Bros. v. Railroad, 2 Lea, 288; Louisville and Nashville Railroad v. Gilbert, Parkes Co., ante, 430.
A through bill of lading, where the shipment is over more than one line, or upon reduced rates, is a sufficient consideration. Dillard Bros. v. Railroad, 2 Lea, 288.
Both these considerations exist in this case, and there is proof that the shipper could have shipped upon common law bill of lading if he had so
But when the plaintiff has declared upon a special contract excusing the carrier from loss by fire, and has alleged a loss by fire due to negligence of the carrier, must the plaintiff’ make out what he alleges, or may he still rely upon the presumption of negligence which originally attached to the carrier by reason of his common law liability as an insurer?
Or if it be a case where a loss by fire is not
The rigor of the rule which made the carrier of goods an insurer has, under changed conditions of business, been so relaxed as to permit him to contract against losses resulting from fire. But to secure fidelity and diligence, this relaxation will not extend so far as to excuse him for a loss by fire which was the consequence of his own want of care. Notwithstanding his contract, he continues liable for his own negligence. The gravamen of the action against him, when there is such a special contract and a loss by fire, is his negligence. This the learned counsel for defendant in error seems to have clearly apprehended, inasmuch as the declaration charges a loss by fire through negligence.
"When negligence is presumed,' it is because certain proven facts naturally and logically impute the absence of that degree of care required by law. This is very clearly shown in the very able opinion of Chief Justice Nicholson in Railroad v. Mitchell, 11 Heis., 404.
Upon a review of all the authorities, the learned Chief Justice for this Court laid down the limitations within which negligence might, as matter of law, be imputed, saying “that the law, therefore, requires in an action against a carrier for injuries suffered by a passenger, prima facie proof that the proximate cause of such injuries was the want of something which, as a general rule, the carrier was hound to supply, or the presence of something which, as a general rule, the carrier was hound to keep out of the way.”
“ It follows, therefore,” said he, “ that when the proof that shows the injury fails to show the want of something which the carrier was hound to supply, or the presence of something which he was hound to keep out of the way, no presumption of negligence arises. In such case the plaintiff’ must go further, and make out his case by evidence which fixes negligence on the carrier.” 11 Heis., 404.
It is true that a difference exists between the liability which attaches to a common carrier of go.ods and that of a common carrier of passengers. In the one case there is the liability of insurers, and in the other no liability without negligence. But by special contract the carrier of goods, with respect to his liability for a loss by fire, has been put upon the same plane of responsibility as the carrier of passengers, and there is no responsibility without negligence. The rule, then, applicable to a mere proof of injury, that such proof does not presume negligence, is equally applicable in case of proof of loss by fire without circumstances imputing negligence. There is no natural presumption that a fire, the origin of which is unknown, was the result of the want of care of the owner or occupant of the premises of its origin. The ancient rule, of the common law, which presumed negligence in such cases, was pronounced in the reported cases to be har-sh and unreasonable, and was by the statute of 6 Anne, Ch. 31, abrogated. The' Courts of this country, whether regai’ding the statute of Anne as in force or not, have unanimously held that negligence or misconduct was the gist of the action against one upon whose premises a fire had originated, and that such neg
An exception to the general rule requiring proof of negligence is supposed to exist in' the case of fire communicated by sparks emitted from locomotives. This exception rests upon the assumption that by due diligence in the use of the most improved machinery for the consumption of sparks, they need not be emitted, and that the emission of sparks therefore presumes negligence in the failure to provide proper spark ar-resters, and thus cast upon the defendant the burden of proving that its appliances are of the most approved kind. Burke v. L. & N. R. R., 7 Heis., 462. This exception, while well established in this State and in a few others, has not met with the approval of -the majority of the Courts of America. It rests upon its own peculiar grounds —the duty of using most approved machinery to prevent emission of sparks, the presumption that emission of sparks is prima facie evidence that such improved machinery has not been used, and upon the grave difficulty in the way of a plaintiff to affirmatively prove the character of machinery in the exclusive care and control of the defendant. The case i.s not parallel to the one under consideration, and affords no reason for further departure from the well-settled general rule which refuses to presume negligence save upon facts naturally im-
By the proof of loss by fire the carrier has brought himself within the rule stated by Judge Caldwell in Railway Co. v. Wynn, “ that the carrier may exonerate itself from responsibility by either showing that the case falls within one of the exceptions of the common law or within one of the stipulations of the special contract.” 88 Tenn., 331.
It has been settled that after a bailor has proved the contract and the delivery of the goods, the burden of proof is upon the bailee to show a loss and the manner they were lost, and this throws the proof of negligence upon the bailor. Runyan v. Caldwell, 7 Hum., 134.
The great weight of authority is that the rule concerning a loss by fire under a bill of lading containing a fire clause is identical with that applicable to bailor and bailee. Hutchison on Carriers, 767, 768; Schouler on Carriers, Secs. 439, 478, and 578; Am. & Eng. Ency. of Law, Vol. II., 904, and authorities cited; Railroad v. Reeves, 10 Wall., 176; Clark v. Barnwell, 12 How., 130; Iron Co. v.
We do not understand the case of Inman v. Railway Co., 129 U. S., 128, to decide any thing contrary to the • earlier and well-considered cases cited above. That case went off, both in the Circuit and Supreme Court, upon another question altogether.
The case of Turney v. Wilson, 7 Yer., 340, was a case of suit against a carrier by water, whose bill of lading excused him from a loss by “ dangers of the river.” The proof showed a leaky boat, resulting from some unknown cause. It was properly held that an unknown cause producing a leaky boat was not “a danger of the river.” What was said about the necessity of proving a' danger which could not be avoided by the utmost care was unnecessary to the case. The case of Dillard Bros. v. Railroad, 2 Lea, 288, does not settle this question, it being expressly waived.
Second. — The bill of lading contained a clause excusing the railway company from liability for injury to goods “whose bulk is such as requires them to be carried upon open cars, or which are usually carried upon open cars.” Evidence was offered to show that other railway companies usually carried compressed cotton upon open cars. This evidence, upon objection of the plaintiff below, was excluded. This was error. The proof was that this cotton was loaded upon an open car, and the fire originated in a box-car adjoining this open car, and in the
Third. — There was no error in permitting this suit to be maintained in the name of the Manchester Mills for the use of the insurance company, who had paid the loss. “ Where the consignor has insured the goods and they are lost, the insurance company, having paid the insurance, is entitled to be subrogated to the rights of the consignor against the carrier. The primary liability is upon the carrier, the secondary upon the insurer.” Am. & Eng. Ency. of Law, Vol. II., p. 837, and cases cited.
“In the absence of any contract on the subject, if the insured owner accepts payment from the insurance company, they may use the name of the assured in an action to obtain redress from the carrier whose failure of duty caused the loss. . The right rests upon the doctrine of subrogation, depending not at all upon privity of contract, but
For the errors above indicated, the judgment will be reversed and remanded for new trial.