Fuller v. Virginia & Carolina Southern Railroad

DeviN, J. A single determinative question is presented: Was the evidence offered sufficient to take the case to the jury as to the negligence of the railroad in the transportation of the mules in question? This question must be answered in the affirmative. The pertinent evidence is summarized briefly above. Evidence that the mules were delivered to the carrier in sound, healthy condition from sanitary pens and from lots which were free from disease, that there was undue delay in feeding and watering the animals in transit, that the carrier did not give the animals the period of rest which it contracted to allow them, and that the animals arrived in a diseased condition, such a disease being one which may be caused, or cause to develop actively, by treatment similar to that given the animals in question, is sufficient to shift — not the burden of proof' — -but the burden of going forward (the risk of nonpersuasion) to the defendant. In Edgerton v. R. R., 203 N. C., 281, 283, and in Farming Co. v. R. R., 189 N. C., 63, 67, the following charge was approved: “The rule being that when stock in a damaged condition, not caused by natural causes, or by the innate or vicious nature of the stock, is found in the possession of the carrier, the presumption is that the carrier in whose possession the stock is found in such damaged condition, and not due to the natural causes or innate viciousness of the stock, is responsible for the injury sustained. That *651 is, not the burden is shifted from -plaintiff to the defendant, but the finding of the stock in the damaged condition, not due to natural causes or innate viciousness of the animals, if found in the possession of the carrier, is enough evidence to go to the jury, from which evidence the jury may or may not find by the greater weight of evidence that the damage to the stock was caused by the negligence of the carrier in whose possession it is found.” To the same effect see Hinkle v. R. R., 126 N. C., 932. We think this rule is equally applicable to stock delivered in a sickened and diseased condition, where the evidence tends to show that the treatment accorded the animals is such, in the opinion of experts, to produce the diseased condition actually found in the animals. Farming Co. v. R. R., supra. Plaintiff’s evidence in the instant case goes further than the requirements of this rule. Here a qualified expert, upon a hypothetical question, gave it as his opinion that the mules contracted the disease after leaving St. Louis while en route to Lumberton in the custody and possession of the carriers. In Farming Co. v. R. R., supra, 67, where the facts were similar to those in the instant case, the following charge was approved; “The railroad companies are responsible only for such sickness, whether resulting in death or not, as was due to the carelessness and negligence of the defendants or one of them, or unless such negligence materially contributed thereto.” There, it was likewise pointed out, when there is no dispute as to the contract of carriage, receipt of the stock, and death of the stock, “the loss is presumed to have been attributable to the defendant’s negligence. Everett v. R. R., 138 N. C., 68; Hosiery Co. v. Express Co., 184 N. C., 478.” Farming Co. v. R. R., supra, at p. 67, quoting from Livestock Co. v. Davis, 188 N. C., at p. 221. As stated by Elliott (Railroads, 3rd Ed., Vol. 4, p. 832), “. . . the prevailing rule ... is that when the animals are shown to have been delivered to the carrier in good condition, and to have been lost or injured on the way, the burden of proof then rests upon the carrier to show that the loss or injury was not caused by its own negligence.” The English rule, as stated by Hutchinson (Carriers, 3rd Ed., Vol. 1, p. 347), is that “the carriers of live animals incur the responsibilities of common carriers (insurer) as to such freight; but that, at the same time, where an injury has happened to them, it is competent for the carrier to show that it occurred through the ‘proper vice’ of the animal and not from any negligence on his part.” The same author adds, “And in this country, with greater unanimity, the duty and liability of the common carrier as to such freight have been defined with exactly the same limitations.” The general rule as to goods damaged in transit is that such damage is presumed to have resulted from the carrier’s negligence. Holmes v. R. R., 186 N. C., 58; Peele & Copeland v. R. R., 149 N. C., 390; *652 Everett v. R. R., 138 N. C., 68; Parker v. R. R., 133 N. C., 335; Hosiery Co. v. R. R., 131 N. C., 238; Mitchell v. R. R., 124 N. C., 236. As to tbe carriage of livestock, tbis rule does not disappear. As to livestock tbis rebuttable presumption of negligence bas merely been modified in keeping witb tbe character and nature of animate goods and tbe peculiar dangers to wbicb sucb freight is subjected. Tbe carrier is not presumptively liable for injuries growing out of tbe natural propensities and innate viciousness of tbe animals, in tbe absence of proof of negligence, but, witb that exception borne in mind, tbe presumption of negligence arising from delivery in a damaged condition is equally applicable to shipments of animals and, being sufficient in itself to take tbe case to tbe jury, casts tbe burden of going forward witb evidence (tbe risk of nonpersuasion) upon tbe defendant carrier. Osborne v. R. R., 175 N. C., 594; Teeter v. Express Co., 172 N. C., 616; Schloss v. R. R., 171 N. C., 350; Mewborn v. R. R., 170 N. C., 205; Holton v. R. R., 165 N. C., 155; Jones v. R. R., 148 N. C., 580; C. & O. R. R. v. Mfg. Co., 270 U. S., 416. As to tbe difference between burden of proof and burden of going forward, see Speas v. Bank, 188 N. C., 528. Aided as be was by tbis rule, plaintiff’s evidence was sufficient to require tbe submission of tbe case to tbe jury. In tbe granting of tbe motion for judgment as of nonsuit there was error. Reversed.