24 Minn. 506 | Minn. | 1878
At Tiffin, Ohio, the plaintiff shipped with the Baltimore & Ohio Eailroad Company two marble slabs, packed in a close box, consigned to herself at Worthington, in this state, and upon the requirement of the company executed an agreement releasing the company, and each and every other company over whose line the goods might pass to their destinatic n, from any and all damages that might arise from certain specified causes, and “from any cause not arising from gross negligence of the said company or companies, its or their officers or agents.” The slabs passed to their destination over the Baltimore & Ohio, and two other railroads, to St. James, in this state, and over the road of the defendant from St. James to Worthington, and when delivered by the defendant to the plaintiff, at Worthington, were found to have been broken. This action was brought to recover damages for the injury.'
At the trial an objection was made to a question to a witness accustomed to packing marbles for transportation, calling
The court charged the jury, in substance,'that common carriers of goods cannot, by contract, absolve themselves from the consequences o; their own negligence, and that, the contract proved, could not be allowed to have that operation; that the burden of proof to show ordinary care was on the defendant, and that the jury might presume negligence from the fact that the goods were found to be damaged when delivered to plaintiff at Worthington.
Defendant excepted to these propositions in the charge, and requested an instruction that the contract was reasonable, and that the plaintiff could not recover without gross negligence of the defendant, which the court declined. Defendant also requested an instruction that if the marble was so improperly packed by the plaintiff that it could not be handled with reasonable care in the transportation without injury thereto, the plaintiff cannot recover. The court gave this instruction, with the qualification, “unless the injury happened independent of the defects in the packing. ” To this defendant excepted. The qualification was correct, for while plaintiff could not recover for an injury to which her negligence contributed, no negligence of hers unconnected with the cause of the injury could defeat a recovery.
The charge presents the question of the power of a common carrier of goods to limit by contract his liability as it existed at common law It is perhaps to be regretted that courts have allowed any relaxation of the common law rule of liability. But that a common carrier may by special agreement qualify to some extent his liability is too well settled by decisions to be denied. How far he may do it the authorities are not entirely agreed. The greater number of authorities in the United States hold, and, since Christenson v. American Express Co. 15 Minn. 270, it is to be taken as the settled doctrine of this court, that a common carrier of goods
When there is a contract limiting the liability to injuries caused by the negligence of the carrier, which party, the owner or the carrier, must show from what cause the injury •or loss arose, is a question upon which there is some conflict of authorities. Harris v. Packwood, 3 Taunt. 264; Marsh v. Horne, 5 B. & C. 322; French v. Buffalo, N. Y. & E. R. Co. 43 N. Y. 108; Sager v. S. & P. & E. R. Co. 31 Me. 228, and Kallman v. United States Express Co. 3 Kan. 205, affirm the rule, without giving any reason for it, to be that the burden is on ■the owner. On the other hand, in 2 Greenl. Ev. § 219, the rule is stated, “and if the acceptance of the goods were special, the burden of proof is still on the carrier to show not •only that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care.” And this ruléis followed in Swindler v. Hillard, 2 Rich. (S. C.) 286; Baker v. Brinson, 9 Rich. 201; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; and Whitesides v. Russel, 8 W. & S. 44. The latter cases are most consistent with principle; for, where there is no contract, there has never, so far as we know, been any question that the carrier, to escape liability, must show the case to have occured from one of the causes which the law excepts from his liability. No good reason can be given why the burden should be changed because he has by contract added other exceptions to those made by the law. As to where the burden of proof was the charge was correct.
There was some evidence from which the jury might find that when delivered to the B. & O. R. Co. the slabs were in good condition. Between that company and the defendant
Judgment affirmed.