1. Whatever doubts may at one time have been entertained on the subject, it is now well settled, that, although a common carrier cannot limit the liability which the common law devolves on him by any .general notice, he may do so by special contract with tbe shipper. — Dorr v. N. J. Steam Nav. Co., 1 Kernan, 490-91 ; S. C., 4 Sandf. Sup. Ct. R. 141-2; N. J. Steam Nav. Co. v. Merchants’ Bank,
2. As. .the exception contained in tbe contract did not -have tbe effect of relieving the plaintiff from liability for „ any “ breakage” which was the result of his negligence, it follows, that evidence tending to show that the breakage complained of was not the result of the plaintiff’s negligence, was admissible in bis behalf; and we hold, that, for this purpose, it was competent for the plaintiff to show, that articles similar to those specified in tbe bill of lading, coming to.Mobile upon vessels by sea, were usually in. .a
The decision of this court in O'Grady v. Julian, (.
3. The- difficult point in the case arises upon the charge-which was asked by the defendants, and which the eourt refused to give.
In reference to special agreements, limiting the carrier’s responsibility, Nelson, J., in delivering- the opinion in New Jersey Steam Nav. Co. v. Merchants' Bank, (6 Howard, U. S. 384,) uses this language: ‘.‘The owner of goods, by entering into, the contract, virtually agrees that, in respect to the particular transaction, the carrier is not regarded as in< the exercise of his public employment, but as a private person, who incurs no responsibility beyond that of a bailee for hire, and answerable only for misconduct or negligence.” — See, also, 4 Sandf. Sup. C. R. 145; 1 Kernan, 493; And it has been held on several occasions-, that, although a; special contract,, qualifying a carrier’s responsibility, does, not exempt him. from liability for loss resulting from his-
On the other hand, and in cases in which the question received the most thorough consideration, it has been decided, that where there is a special contract, limiting the carrier’s responsibility, the onus oí showing, not only that the cause of the loss was within the terms of the exception, but also that there was no negligence, is on the carrier.— Swindler v. Hilliard, 2 Rich. L. R. 286 ; Baker v. Brinson, 9 Rich. L. 201; Davidson v. Graham, 2 Ohio St. R. 131; Graham v. Davis, 4 Ohio St. R. 362; Camden & Amboy R. R. Co. v. Baldauf, 16 Penns. St. R. 67; 2 Greenl. Ev. § 219.
Without adopting this rule in the terms in which it is here stated, we think it is so far true in the present case, that an injury by “'breakage” to the articles shipped is not brought within the terms of the exception, unless it is also shown that the “ breakage” was not-the result of the negligence of the carrier. In other words, the exception includes only such breakage as care.and diligence could not prevent; and the injury is not within the exception, until it is shown that it occurred notwithstanding the exercise of such care and diligence. It is not strictly accurate to say, that the onus is on the carrier to show, not only that the cause of loss was within the exception, but also that he exercised due care. The correct view is, that the loss is not brought within the exception, unless it appears to have occurred without negligence on the part of the carrier; and, as it is ior the carrier to bring himself within the exception, he must make at least a prima-facie showing that the injury was not caused by his neglect.
It is a mistake to suppose that, by the insertion of such an exception as is found in this bill of lading, the 'character of the employment is changed. The party receiving the
In most cases of bailment, the bailee is chargeable, not by the delivery of the goods, but by reason of negligence. Hence, in the case of ordinary bailments, the general rule is, that to hold the bailee responsible, negligence must be alleged and proved; though some courts have considered that the bailee should be held to proof of the facts and-circumstances under which the loss occurred. — Clarke v. Spence, 10 Watts’ R. 335; Logan v. Mathews, 6 Barr, 417 ; Swindler v. Hilliard, 2 Rich L. 305-6. But in relation to common carriers, the rule is, that, in all cases of loss, the onus probandi is on the carrier to exempt himself from liability; for, ¿orima facie, the- law -imposes the obligation of safety upon him. Consequently, the owner is bound to prove no more than that the goods were delivered to the carrier, and that the latter had not delivered them to the consignee. These facts constitute prima-facie evidence of negligence or misconduct. — Angell Carr. 202; Story Bailm. § 529.
By the common law, the carrier is responsible for all losses, except such as result from the act of Grod, or the public enemy. Hence', 'his liability is not confined to such losses as are the consequences of his own negligence, or want of skill. - He is liable for losses by- accident, mistake, and numerous unavoidable occurrences, not falling under the head of acts of Grod og the public enemy, and against which it is not within the reach of human vigilance or foresight to provide. For losses occasioned by the wrongful acts of third persons, by accidental fires, by robbery, or by the violence of mobs, which neither 'the carrier ñor his agents-can resist, or by any vigilance avoid; lie is responsible. — 1 Smith’s L. C. 315 ; 2 Ohio St. R. 137. The lia
On grounds of public policy, tbe courts have manifested a disposition to construe any new exceptions to the liability of a common carrier, strictly 'against him. — Atwood v. Transportation Company, 9 Watts, 87. Without the exception, the carrier would be liable as an insurer,"for a loss from the specified cause; and the only legitimate effect of the exception is, to relieve the carrier from this extraordinary responsibility for a loss which could not have been prevented by proper care and diligence on his part, When, therefore, a carrier, as in this case, provides against accountability for “rust or breakage,” tbe proper construction of the exception is, that the carrier is not to be held liable as an insurer -for “ rust or breakage” which occurs without negligence
Where a carrier seeks to bring a loss within the common-law exception of “aD act of God,” he cannot throw upon the employer the burden of proving or inferring negligence or defective means in the carrier, until he has shown the intervention of such an extraordinary, violent and destructive agent, as by its very nature raises a presumption that no human means could resist its effect. — 1 Smith’s L. C. (5th Am. ed.) 318 ; Coosa R. Co. v. Barclay,
In like manner, the exception of “perils of the sea,” and “dangers of the river,” means such as cannot be avoided by the exercise of that discretion and care, which the law -requires of common carriers; and to ascertain whether a loss falls within the exception, it must be inquired, whether the accident could have been prevented by the exercise of proper foresight .and diligence. — 1 Smith’s L. C. 316 ; Williams v. Branson, 1 Murphy, 417; Marsh & Houren v. Blithe, 1 N. & McC. 170 ; Jones v. Pitcher, 3 St. & P. 136, 171. Thus, where goods were received on board a steamboat, and the -bill of lading contained an exception
The same principle must apply to,the present exception. The proof of injury makes a jmma-facie case of negligence against the carrier $ and he does not bring the injury within the exception, until he shows the exercise of due vigilance on his part to prevent the injury 5 unless, indeed, the nature of the injury, or of the property, be such as to furnish, of itself, evidence that due care and diligence could not have prevented the injury.
There is no hardship in such a rule, and many strong reasons unite to commend it to our approval. It is of the utmost importance to the commerce of the country, that carriers should be held to a strict accountability. On this subject, we concur in the remark of Chief-Justice Gfibson, that, “though it is, perhaps, too late to say, that a carrier may not accept his charge in special terms, it is not too late to say, that the policy which dictated the rule of the common law requires that exceptions to it bé strictly interpreted, aud that; it is his duty to bring his case strictly within them.” —
One result of the introduction of steamboats and railroads is, that common carriers have, to a great extent, taken exclusive possession of the public thoroughfares of the country, and have it ¿n their power to impose their own terms
The result of what has been said is, that if the goods were in good order when received- by the plaintiff in Philadelphia, and in bad order from “breakage” when delivered - in Mobile, it devolved upon the carrier to show that proper diligence and skill were exercised -to prevent the injury ; unless, as before remarked, it appears that the nature of the injury, or of the property, is such as to show, of itself, that due care and diligence could not have prevented the injury. The charge asked should have been given.
Judgment reversed, and cause remanded.