Warner, C. J.
This is an action brought against the defendant as a common-carrier for the loss of thirty-three bales of cotton. The errors complained of are, that the Court below refused to grant a new trial upon the several grounds specified in the record. The first assignment of error that we will now consider and decide is, that the Court below erred in charging ■ the jury, “ that the receipt offered in evidence was not a special contract binding on the plaintiff.” The decision of this question involves the liability of a common-carrier in this *111State, as well as the extent to which he may limit his legal liability under the laws thereof. What is the legal liability of a common-carrier in case of the loss of goods entrusted to him as such, under the laws of this State? By the 2039th section of the Revised Code, it is declared, that “Any person undertaking to transport goods to another place for a compensation, is a carrier, and as such is bound to ordinary diligence.” The 2040th section of the Revised Code declares, that “ one who pursues the business constantly, or continuously, for any period of time, or any distance of transportation, is a common-carrier, and as such is bound to use extraordinary diligence. In cases of loss, the presumption of law is against him, and no excuse avails him, unless it was occasioned by the act of God, or the public enemies of the State.”
1. The legal liability of a common-carrier by the laws of this State, therefore, in case of the loss of the goods entrusted to him, is clearly and explicitly defined, and no excuse will avail him, unless such loss was occasioned by the act of God, or the public enemies of the State. Thus is the law written, and positively declared, by the supreme power of the State. We have thus shown what is the legal liability of a common-carrier in this State, in case of the loss of the goods. The next question that presents itself is, how far, to what extent, and in what manner can such common-carrier limit that liability, imposed upon him by the law? It is contended in this case, that the defendant has limited his legal liability in his receipt given for the cotton to the plaintiff. To give such a construction and effect to the receipt, as is contended for, would be to allow the defendant to limit and regulate his legal liability as a common-carrier, in express contravention of the law, which imposes it upon him. The defendant’s liability as a common-carrier is regulated by law upon the grounds of publie policy, and he cannot be permitted, by his own act, to limit the effect and operation of that law, and thereby defeat that public policy. It was the duty of the defendant, as a common-carrier, to obey the law in regard to his liability as such, and not to attempt to make it, for his own protection. But the 2042d section of the Revised Code expressly de*112dares, that “ A common-carrier can not limit his legal liability by any notice given, either by publication, or by entry on receipts given, or tickets sold. He may make an express contract, and will then be governed thereby.” The legal liability of a common-carrier, as defined by the law, is one thing; his legal liability as a common-carrier, under an express contract made with the shipper, is another and quite a different thing. In the latter case, his liability will depend upon the terms of that express contract, and will be governed by it. But such express contract limiting his legal liability as a common-carrier, cannot be proved by a notice given, either by publication, or by an entry on the receipt given for the goods, or tickets sold. The express contract made with the shipper of the goods, limiting the legal liability of the common-carrier, must be made independently of the receipt given for the goods, and be proved independently thereof as any other contract is proved, when entered into by two or more parties to it. The common-carrier receipts the shipper for the goods, and the law fixes his liability therefor in. case of loss; but the common-carrier and the shipper may enter into an express contract, outside of the receipt given for the goods, in regard to the carrier’s liability, and then, both parties having a fair opportunity to understand the terms of the contract, will be governed by it. Such, in our judgment, is a fair and legitimate interpretation of the Code, in relation to the liability of common carriers in this State.
2. The next ground of error assigned upon the record is, that the Court erred in charging the jury “ that if the contract was made as testified by the witness Sylvester, it was still incumbent on the defendant to prove, that there was no negligence on their part.” The effect of this charge in our judgment, was to exclude from the consideration of the jury the question in dispute, whether the cotton was destroyed by the negligence of the defendant, or by the failure of the plaintiff to perform his part of the express contract, if they should believe such a contract was made. In view of the facts of this case, as disclosed by the record, we think that the Court below erred, in not charging the jury, in addition to the charge as given, that *113if they should believe from the evidence, that there was an express contract made between the plaintiff and defendant outside of, and independent of the receipt given for the cotton, as testified to by the witness Sylvester, and that the cotton was destroyed by fire, in consequence of the failure of said plaintiff to perform said contract on his part, then the defendant was not liable for the loss of the cotton. It is true that the defendant, as a common-carrier, is liable under the law, for negligence. Whether the cotton was destroyed by the negligence of the defendant in this case, or by the failure of the plaintiff to perform his contract with the defendant in relation to its transportation (if any such contract was made) is the question for the jury to determine under the evidence, and the charge of the Court upon that point. Upon this last ground, we reverse the judgment of the Court below and grant a new trial.
Judgment reversed.