Hinkle, Craig & Co. v. Southern Railway Co.

Douglas, J., (after stating the facts). This case was submitted to us on printed briefs for the plaintiffs, but was argued in behalf of the defendant both orally and by brief. It is perhaps proper to say that almost the entire brief of the defendant was devoted to proving a proposition that we have no disposition to deny, that is, that a common carrier can, by special contract, reasonably limit its common law liability. But we can not admit the assumed corollary that thereby it ceases to be a common carrier or ipso facto reverses the legal burden of proof. It is well established that where the negligence of the defendant is tire primary cause of action, it must be alleged and proved by the plaintiff; but, here, it is merely [937] incidental to the canse of action; in fact it arises as a matter ■of defense. We must not lose sight of the real cause of action, which is the injury resulting from the failure of the defendant to seasonably transport and safely deliver livestock received by it as a common carrier. The plaintiff’s case is fully made out when he has shown that the cattle were received by the carrier, and not seasonably and safely delivered, that is, not delivered at all, or delivered in a damaged condition, and after an unreasonable delay. The burden is then upon the defendant, and, if it wishes to escape any part •of its common law liability by showing a special contract, it must affirmatively prove such contract, and bring the injury clearly within the terms of its exemption. These principles have been so recently and so full discussed by this Court in Mitchell v. Railroad, 124 N. C., 236, that any further elaboration seems needless, at least for the present. The essential principle is tersely and strongly stated by Chief Justice Fatbci.otii, in Manufacturing Co. v. Railway, 121 N. C., 514, where, speaking for a. unanimous Court, he says: “Among •connecting lines of common carriers, that one in whose hands goods are found damaged is presumed to have caused the' ■damage, and the burden is upon it to rebut the presumption The rule is well stated in Creenleaf on Evidence (14th Ed.), sec. 219, in the following language: “And if the •acceptance was special, the burden of proof is still on the carrier to show, not only that the: cause of loss was within the ■terms of the exception, but also that there was on his part no negligence or want of due care. That this rule, which at first was seriously questioned, is receiving almost general acceptance, would appear from the recent work of Elliott on Railroads, where the authors say in •sec. 1548, on page 2403: “There is some conflict among the authorities as to the burden of proof in such cases; but the [938] prevailing rale, where the owner- or bis agent does not go with the stock, 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.” This rule, which is the natural result of the p't'ima facie liability of the common carrier, is further-strengthened by the universal acceptance of the principle that where a particular fact, necessary to be proved, rests peculiarly within the knowledge of a party, upon him rests the burden of proof. 5 Am. and Eng. Enc. of Law, (2d Ed.), p. 41; Best on Evidence; sec. 274; 1 Greenleaf Ev., sec. 79; Starkie on Ev., sec. 589; Rice on Evidence, sec. 77; Railroad v. U. S., 139 U. S., 560, 567; State v. McDuffie, 107 N. C., 885, 888; Govan v. Cushing, 111 N. C., 458, 461; Mitchell v. Railroad, supra. Some of the earlier cases appear to take-the view that a common carrier ceases to be such when it makes a special contract, and becomes a private carrier for hire. Whatever foundation may have existed for such an idea in the earlier days of the law, when common carriers were private individuals and carried their shipments in wagons or boats on the ordinary public highway, without receiving or asking any special privileges, has long since disappeared'. A railroad company is at least a quasi public corporation, exercising one of the highest prerogatives of th'e Sovereign, that of eminent domain. It is purely a creature of the law, and has no existence outside of its public capacity. It is a common carrier by -virtue of its charter, and not by any supposed usage or contract with the shipper. Its character as such is fixed by its contract with the State, and can not be waived either by the corporation or the shipper. It may limit its liability to a certain extent by special contract, but can not change its character. All such contracts of limita [939] tion, being in derogation of common law, are strictly con•strued, and never enforced unless shown to be reasonable. Any doubt or ambiguity therein is to be resolved in favor of the shipper, and it has further been held that the burden of proof rested upon the carrier of showing that all such stipulations and exemptions were reasonable. Campania La Flecha v. Brauer, 168 U. S., 104, 118; 4 Elliott on Railroads, sec. 1424; Cox v. Railroad, 9 A. and E. railroad cases (N. S.), 591, 600; Texas R. Co. v. Reeves, 8 Am. and Eng. E. cases (N. S.), 429; 5 A. and E. Enc. (2d Ed.), 326. Stipulations-in a bill of lading are similar in their nature to conditions in a policy of insurance. It- is well settled by the highest authority that if a policy is so drawn as to require interpretation and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured, and against the construction which would limit the liability of the insurer. Fire Insurance Co. v. Coos Co., 151 U. S., 452;. London Asso. v. Campania de Moagens do Bareiro, 167 U. S., 149. In the case at bar it does not appear necessary for the plaintiff to resort to the burden of proof, as the unreasonable detention is in itself evidence of negligence. It appears from the evidence that the cattle were four days and-three nights, that is eighty-four hours, in reaching their destination, a distance of 400 miles. At the present day, the transportation of livestock over a great trunk line of railway at an average rate of less than five miles a,n hour can not be considered reasonable diligence in the total absence of explanation. The only remaining question is whether the failure of the plaintiff to give formal written notice of his loss or intention to demand compensation is an absolute bar to his recovery, if otherwise entitled. We think not. The object of such a stipulation is not to relieve the carrier from its just liability,. [940] for such a purpose would be clearly unlawful, but simply to give it such notice as will enable it by proper investigation to protect itself against unjust claims. It is not denied that the plaintiff signed the receipt for the cattle under protest. These words written upon the receipt would be ample notice to the defendant that the plaintiff intended to enforce his rights. The meaning' of those words is too well known in ■the business world to be capable of misconstruction. In the present instance they clearly meant that the plaintiff objected to receiving the cattle in their damaged condition, but did so under compulsion of circumstances to prevent still further loss, but a,t the same time retaining all his rights of action against the defendant. If the defendant’s agent had desired any more specific notice or information, he might have asked for it after having been put upon notice, but this he did not see fit to do. Even if the protest had been merely verbal and not in writing, the stipulation might well have been deemed to have been waived under the circumstances. It appears from the uncontradicted testimony that the plaintiff suffered the injury and gave actual notice to the defendant of his claim for damages. We do not see why he can not recover. Any other construction would convert what, properly construed, is a reasonable stipulation for the proper protection of the carrier into an instrument of fraud and a shield •of wrong. This is so clearly explained by Justice Eueches, speaking for the Court, in Wood v. Railway Co., 118 N. C., 1056, 1063, as to require no further comment. Judgment of the Court below is Affirmed.