Louisville & N. R. Co. v. Manchester Mills

• Decision Date: 24 April 1890
• Citation: 14 S.W. 314,88 Tenn. 653
• Parties: LOUISVILLE & N. R. CO. v. MANCHESTER MILLS.
• Court: Tennessee Supreme Court

14 S.W. 314

88 Tenn. 653

LOUISVILLE & N. R. CO. v. MANCHESTER MILLS.

Supreme Court of Tennessee.

April 24, 1890

Error to circuit court, Shelby county; L. H. ESTES, Judge.

Action by the Manchester Mills against the Louisvile & Nashville Railway Company for damages for the loss of certain cotton shipped by plaintiff over defendant's railroad. There was judgment for plaintiff, and defendant took a writ of error.

McCorry & Bond and J. P. Houston, for plaintiff in error.

Taylor & Carroll, for defendant in error.

LURTON J.

The defendant in error shipped from Memphis, Tenn., to Manchester, N. H., 200 bales of cotton upon a through bill of lading issued by the Louisville & Nashville Railroad Company containing usual clause exempting the carrier from liability from loss by fire. By 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 v. Railroad Co., 2 Lea, 288; Railroad Co. v. Gilbert, 88 Tenn. --, 12 S.W. 1018. A through bill of lading, where the shipment is over more than one line, or upon reduced rates, is a sufficient consideration. Dillard v. Railroad Co., 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 desired. The agreement was therefore valid. The charge assumes the validity of this fire clause in so far as to exempt the carrier from a loss by fire not resulting from its own negligence. The error complained of is that the judge very distinctly told the jury that the burden of proof was upon the defendant to show that the fire was not the consequence of its own negligence. The precise question presented by this charge has not been settled in this state. At the common law the carrier of goods is an insurer against all losses save those resulting from the act of God or the public enemy. It was of this commonlaw responsibility that Judge CALDWELL was speaking when, in the case of Transportation Co. v. Bloch, he said, concerning the burden of proof, that "when goods in the custody of a common carrier are lost or damaged, the presumption of law is that it was occasioned by his default, and the burden is upon him to prove that it arose from a cause for which he was not responsible." 86 Tenn. 392, 6 S.W. 881. 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 charged in the declaration, and the plaintiff has made out a prima facie case by proof of failure to deliver to the consignee, and the defendant has there shown by evidence, not imputing negligence, a loss by fire, is the prima facie case of the plaintiff thereby overthrown so as to require him to establish negligence by other proof, or must the carrier still rest under a presumption of negligence until he has affirmatively shown a loss by inevitable accident? The rigor of the rule which made the carrier of the 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, where 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. Where 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 Co v. Mitchell, 11 Heisk. 404. In commenting upon the leading case, upon the subject of presumed neglience, of Stokes v. Saltonstall, 13 Pet. 190, where it was held that proof that a stage was upset and the plaintiff's wife injured constituted prima facie evidence that there was a carelessness or want of skill in the driver, the chief justice said that "these facts furnish a prima facie case of the want of that skill which the carrier was bound to supply, and that this want of proper skill was the proximate cause of the injury." 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 "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 bound to supply, or the presence of something which, as a general rule, the carrier was bound to keep out of the way. * * * It follows," said he, "that when the proof that shows the injury, fails to show the want of something which the carrier was bound to supply, or the presence of something which he was bound to keep out of the way, no presumption of negligence can arise. In such case the plaintiff must

go further, and make out his case by evidence which fixes negligence on the carrier. 11 Heisk. 404.

The doctrine may be safely laid down as established that no presumption of negligence arises from the mere proof of injury to passengers. Sommers v. Railroad Co., 7 Lea, 201; Hutch. Carr. § 799. It...