(61 South. 708.)

No. 18,579.

#### NATIONAL RICE MILLING CO. v. NEW ORLEANS & N. E. R. CO. et al.

(April 22, 1912.

On Rehearing, April 14, 1913.)

*(Syllabus by the Court.)*

1. Carriers (§ 132*) — Injury to Shipment-Burden op Proof.

Where, in an action to recover the value of goods intrusted to a carrier and destroyed in transit, it is shown that the proximate cause of the loss was an unprecedented flood, the burden of proof rests upon the plaintiff to show that, the flood notwithstanding, the loss could have been averted by the exercise by the carrier of reasonable care and skill.

[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.*]

On Rehearing — On Motion to Dismiss.

2. Motion Overruled.

The facts do not sustain the grounds of the motion. The motion is therefore dismissed.

On the Merits.

3. Carriers (§ 132*) — Injury to Shipment-Burden of Proof.

According to law and jurisprudence of this state, to be relieved from liability the carrier must prove that the loss or damage has been occasioned by accidental or uncontrollable event, and this involves the proposition that the carrier must prove that it was free from fault.

[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.*]

4. Carriers (§ 134*) — Injury to Shipment-Sufficiency of Evidence.

No timely attempt was made to save the property.

LEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.*]

5. Carriers (§§ 119, 132*) — Injury to Shipment— Negligence — Burden of Proof — Carmack Amendment.

Whether under the jurisdiction of the Supreme Court of the United States or under state law, the defendants were at fault and are liable.

[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 523-530, 578-582, 605; Dec. Dig. §§ 119, 132.*]

6. Carriers (§ 119*) — Shipment of Goods— Duty to Carrier.

There had been a general storm in the northern part of the state in which the cars were destroyed. There was warning given by the Weather Bureau of the floods; besides, the defendants had other sources of information. The water reached the flood stage on the 26th of August, 1908. The cars were left in the lowest part of the defendants’ yards — anterior to the rise of the waters — and they failed to haul them out. The train was made up in part of the two cars destroyed. There were in the train on the yard cars loaded with lime, which were ignited by water of the flood. On learning that there was to be an unprecedented rise, it behooved defendants to be unusually careful with the cars loaded with lime and haul them away from the danger line.

[Ed. Note. — F'or other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. § 119.*]

*(Additional Syllabus by Editorial Staff.) ■*

7. Carriers (§ 119*) — Injuries to Shipment —Defense—Report of Weather Bureau.

In a shipper’s action for destruction of a shipment by flood, an inaccuracy in the Weather Bureau’s forecast as to the extreme height which the waters would reach constituted no defense, where the carrier showed no reasonable activity to guard against injury to the shipment after being warned.

LEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. § 119.*]

8. Carriers (§ 156*) — Injury to Shipment-Waiver — Negligence.

. A carrier is liable for loss occasioned by ordinary negligence, notwithstanding a waiver in the bill of lading purporting to exempt it from liability.

[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. § 156.*]

Monroe, J., dissenting.

Appeal from Civil. District Court, Parish of Orleans; George H. Théard, Judge.

Action by the National Rice Milling Company against the New Orleans & Northeastern Railroad Company and another. From judgment for plaintiff, defendants appeal.

Modified and affirmed on rehearing.

Hall, Monroe & Lemann, of New Orleans, for appellants. Gustave Lemle, W. Catesby *618Jones, and Arthur A. Moreno, all of New Orleans, for appellee.

Statement of the Case.

MONROE, J.

Plaintiff alleges that the defendants named in the caption are indebted to it, in solido, in the sum of $2,487.50, being the value of two car loads of rice, shipped from New Orleans on August 21 and 22, 1908, consigned to Charleston, S. C., and. destroyed, on or about August 26th, at Hamburg, S. C., while in possession of the second-named company; the allegation being that:

> “The destruction of said rice was due solely to the negligence, fault, and want of care of the said Southern Railway, its agents and employes.”

The suit is brought on the bills of lading, which are made part of the .petition, and which provide, among other things, that the initial carrier, by which they were issued, shall not be liable for losses occurring beyond the limits of its own lines. Plaintiff, however, alleges, in that connection, that the act of Congress of June 29, 1906, declares that the initial carrier may be held liable for the safe delivery of property intrusted to it under contracts for through shipment, any stipulations in the bills of lading to the contrary notwithstanding. Otherwise than that, the suit is in affirmance of the contracts represented by the bills.

The New Orleans & Northeastern Railroad Company, for answer, denies that the 'petition discloses a cause of action.

The Southern Railway Company admits that it received the cars and alleges that it—

> “conveyed them safely to Hamburg, S. C., where there was an extraordinary and unprecedented flood, which could not have been anticipated, and which sudden flood reached a car load of lime, properly placed, and, setting-fire to the same, caused the destruction of twenty-five cars, among which [were] the two cars in question; that this happened without any contributory negligence on its part, and that said sudden and unprecedented flood, which could not have been anticipated, with the resultant fire, was the proximate cause of the destruction of plaintiff’s property. * * * Respondent avers that, under the limitations and exemptions in the Bill of lading sued upon, it is not responsible.”

One of the limitations and exemptions- thus referred to reads as follows:

> “Neither this company nor any of its connecting carriers shall be liable for any damage to, or destruction of, said property by fire, unless such damage or destruction shall result, directly and exclusively, from their negligence or that of their employés, and unless such negligence shall be affirmatively established by the owner of said property.”

Plaintiff called one witness, by whom it was shown that the rice in question was worth $2,326.50. Defendant examined 23 witnesses under commissions, and from their testimony it appears that the cars containing the rice were received at Augusta, Ga., on August 25th, and at 1 o’clock on the morning of the 26th were sent across the Savannah river to the old Hamburg yard of the Southern Railway Company, on the South Carolina side, where a train was made up for Charleston, in which the two cars, together with a car of lime, were included; that thereafter, in consequence of a rise in the river, which was not only unprecedented with respect to the volume of water, but more particularly with respect to its suddenness and the lack of warning, the Hamburg yard was inundated to a depth never before known, and the water, coming in contact with the lime, started a fire, which, before it could be reached and extinguished, destroyed most of the ears constituting the train, including those containing the rice. The cause which produced the results thus stated is shown to have been a downpour of rain in that region of South Carolina which is traversed by Rocky river and its tributaries, from Anderson down to Calhoun Palls, where that river empties itself into the Savannah. Some of the witnesses speak of this rainfall as a cloudburst, and they say, generally, that it rained harder, that the streams rose higher and more rapidly, and that the destruction *620was greater, than was ever before known. J. R. Anderson, superintendent of the Blue Ridge Railway, was at Anderson, and says that it began to rain hard at about 7 o’clock on the evening of August 24th, and continued, in a perfect downpour, until about noon of the following day, and further as follows:

> “I think that this rain was the hardest that I have ever seen fall for such a period of time. * * * The waters of all those streams were higher than I have ever known before, and the rise was an exceptionally rapid one. * * * Great vdlumes [of water] were suddenly and unexpectedly thrown in said [Savannah] river.”

J. A. McElroy, farmer and merchant at Sandy Springs, in Anderson county:

> “During the night of the 24th, it began to rain very hard, and rained in a continuous downpour until about 2 o’clock p. m. of the 25th. I suppose this unusually hard rain was what is commonly called a cloudburst. * * * 1 have never seen as hard a rain. * * * [The streams] were higher than they had ever b'een known to be before. * * * I can also state that the rise of the waters in those creeks was a great deal swifter and more unexpected than they have ever been before.”

L. E. Campbell, farmer in Anderson county, aged 65:

> “The rain fell especially hard on August 25th; in fact, so incessantly that I could not get out of the house to vote. Not a vote was cast in my precinct on account of the high water. * * * The water of Rocky river, at that point, rose 10 to 12 feet higher than it ever rose before. The high water in August, 1908, exceeded ad previous freshets in that vicinity. * * * The rise was much more rapid than I have ever known it before. The flood was more extensive and did a great deal more damage than any other previous flood.”

P. C. Martin, farmer and merchant, Calhoun Falls, aged 69:

> “The rains were the heaviest I ever experienced, practically amounting to a cloudburst. * * * The Rocky river rose to a height to which it has never been before, and the rise was a great deal quicker and more sudden than it has ever been before. The whole country about was inundated. * * * The flood was the most destructive that was ever known in the history of South Carolina. • * * In August, 1908, all of these rivers were suddenly flooded by an unexpected and unprecedented fall of rain, as a result of which they rose to heights greater than they had ever been before. This immense volume of water was precipitated upon Augusta, Ga., and Hamburg, S. G., practically without warning to the people in that section.”

P. J. Pfeiffer, farmer, constable, and United States weather observer, at Calhoun Falls, aged 45:

> “The rainfall on the morning of August 25th was the hardest and heaviest rainfall that I have ever seen. The streams and rivers * * * were higher than I have ever seen them in my life. The water rose more rapidly than I have ever seen. At one time, it rose 4 inches in 10 minutes. * * * In August, 1908, the greatest volume of water that has ever fallen upon the watershed around Calhoun Falls poured into the Savannah river with great suddenness and caused a most unusually rapid rise in the Savannah river.”

Granville Beale, farmer and dealer in real estate, Calhoun Falls, aged 56:

> “The rains which fell were really torrential. They raised the Savannah river to a height at which I have never seen it before. * * * I own an island in the Savannah river, just below the mouth of Rocky river. This island comprised about 310 acres of land, and its surface was about 10 feet above the level of the Savannah river. The great volume of water which poured out of Rocky river into the Savannah river, and united with the already swollen waters of the latter river, washed away about 250 acres of the island above referred to. The rainfall at that time was greater than I have ever known it.”

J. C. Parks, railroad agent and United States river gauger, at Woodlawn, about 17 miles above Augusta, testifies that at 6 o’clock p. m. on August 25th the average depth of water in the Savannah river, at that point, was about 6 feet, and that, on the morning of the 26th, at 6 o’clock—

> “the river had risen to a height of 25 or 30 feet and was still rising very rapidly. By 2 o’clock on the same day — the 26th — the river reached a maximum height of 40 feet. * * * This rise * * * was by far the most rapid that I have ever known. * * * I do not believe that the flood of August 26, 1908, could have been anticipated. It came, as a sudden and unexpected deluge, from the country higher up the river, without any warning whatever.”

W. R. Parks1, planter, residing near Parks-ville, within 2 miles of the river, testifies that, to the best of Ms knowledge and belief, *622the river was 6 feet higher, in that vicinity, than during the fresiiet of 1888.

W. F. Taylor, United States mail delivery clerk, residing at Woodlawn, testifies that the conditions were such as1 to give people notice of the flood in 1888, but that in 1908 the flood descended on them suddenly, unexpectedly, and without warning, from higher up the country, and the river rose more rapidly than in 1888.

J. R. Blackwell, magistrate of Edgefield county, testifies to the same effect.

The official report of the Weather Bureau at Augusta contained the following:

> “The excessive rainfalls that occurred in the northeastern portion of the state [meaning the state of Georgia, but referring, also, as we take it, to the rainfalls which 'occurred in the northwestern portion of South Carolina] from the 24th to the 26th caused great damage by floods. The rivers reached heights hitherto unknown, and the .destruction of life and property was very great. The rapidity with which the water rose prevented precautionary measures that would otherwise have been adopted, and thus added to the damage that resulted from the flood.”

The amount of water which thus fell at different points from Calhoun Falls up to the headwaters' of Rocky river, and which that river emptied into the Savannah, during the day and night of August 25th, was appreciated only by those who saw it fall or measured it; and though the officers of the weather Bureau at Augusta published a notice, during the day of the 25th, that the river might be expected to rise to a height oí 33 feet, they were 5.8 feet below the mark, as it ultimately went to 38.8 feet. Up to 12, and possibly 1 o’clock on the night of the 25th, however, the old Hamburg yard, where the train, of which the rice cars and the lime car formed parts1, was standing, was dry, and those cars would have remained dry if the water had not risen above 33 feet.

Hayhoe, the yardmaster, testifies that his* usual working hours were from 7 in the morning to 7 at night, but that on the 25th he received a message from the superintendent that the river was expected to rise, and he therefore stayed at the yard until 12 o’clock and then went home, leaving the river within its banks. On his return, at 7 o’clock on the morning of the 26th, he found the yard under water and the river rising rapidly. But even then he did not know, and had no means of knowing, that a flood, unprecedented in the history of the Savannah river, was upon him, and though he at once took measures of precaution, which were defeated by the flood, it is doubtful whether he really considered that a loaded freight train, standing on solid ground, and the contents of which were above the highest water that had ever been known, save once, was in danger. That he was not alone in failing to appreciate the extent of the impending calamity may be gathered from the following excerpt from his testimony, to wit:

> “I knew of several instances of loss by the flood that looked as if people that had lived in Augusta for years did not anticipate, for the reason (sic) that the riverside mills were almost ruined; the Charleston & Western Carolina riverside yard was almost completely wiped out, and several cars washed down the river; several wholesale houses, located in the heart of the city — for instance, Dicks — were badly damaged by the flood *¡*Nixon’s wholesale house was set on fire by lime, though, when the water rose so rapidly, they endeavored to move their goods to higher ground, but, on account of the jiapid rise of the water, they were unable to do so. The water reached their lime, slacked it, and set fire to the building and several men drowned trying to escape from the building.”

The measure of precaution to which we have referred was an attempt by the yardmaster to have an engine haul the train, of which the rice cars formed part, out of the yard and to safer ground.

H. L. Thompson, who acted as conductor of the engine, tells the story of that attempt as follows:

> “We did everything that could be done, short of risking human life. I was working as conductor on switch engine No. 1553. We report on the Georgia side of .the river and take our engine out of the yards there over to Hamburg. The engineer has to oil up his engine, and on the morning in question we reached the Ham*624burg yard at about 7:20 A. M., just ahead of the passenger train, which was leaving Augusta for Charleston, S. O. Upon reaching the Hamburg yard, we had to get off of the main line, on a side track, in order to allow the passenger train to go by. At that time the tracks and switches were under water, and, in order to get to the old Hamburg yard, where the freight cars were, we had to change two switches. This necessitated clearing out the mud and sand from between the switch rails, and consumed some little time. We then proceeded slowly up towards the old Hamburg yard for the purpose of pulling out the cars which were there. To get to the old Hamburg yard, and get at the ears there, We had to pass over three trestles. The first of these trestles was the scale trestle, and, when we passed over it, it went down about 6 inches, showing that the trestle had been undermined. When we reached the next trestle and pushed the tender upon it (we were running with the tender ahead), this trestle sank about 10 inches, and we were afraid to proceed any further. We feared that the engine might turn over. The engineer, the fireman, and myself were, at this time, all on the top of the tender, ready to jump off if the engine turned over. Seeing that we could proceed no further, the engineer jumped in his cab and stopped the engine. Then we proceeded back, along the way we had come and in passing over the scale trestle we noticed that it went down further than when we passed over it going towards the old Hamburg yards. By this time the water was much higher everywhere, and was running through the ash pan of the engine. I think we got put in time to avoid being caught by the engine. We next got hold of three gravel cars and pushed them on the scale trestle, to hold it down and keep it from floating away. The other trestles all washed away. I remained working in the Hamburg yard until about 11 o’clock, but the water had risen so high and the current was so swift that we could do nothing to save the freight. We did not, however, at any time think that the water would rise sufficiently high to get into the freight cars. When I left the Southern Railway yard, I did so in order to go to the assistance of my wife, mother, sister, and child, all of whom were in a house which was in the flood district, and when I reached home the water was within 3 or 4 inches of the floor, and within an hour it was running several inches in the house. I had to move furniture, provisions, etc., to the second story, where we remained until the flood subsided. In my opinion, nothing could have been done to save the freight in the cars, because the water rose so rapidly and suddenly.”

The testimony of Dent, the engineer, is to the same effect. H. W. Tyler, ear inspector, testifies that, when the fire broke out in the freight train, he and some others tried to get a “batteau,” in order to go there and put it out, but that telephone communication had been cut off, and' they had to wait until some one came along in a “batteau” within calling distance; that they secured the “very first one” that they could get, and that he and three other men went over and put out the fire — thereby saving a car load of sheep. He further testifies that the current was very swift, and for that reason, and because of the floating wood and timber, the expedition was a dangerous one. “The water,” he says, “rose about six feet in said yard.”

G. A. Benson formed one of the party referred to in the testimony of Tyler, and corroborates that testimony, adding that they did not get the “batteau” until the morning of August '27th.

M. J. Marcus testifies in part as follows:

> “I worked in the Hamburg yard, as freight operator from 11 o’clock p. m., on the night of August 25th, until 8 o’clock a. m., on the morning of August 26th. When I went to work, the yard was entirely free from water, and I had no reason to anticipate that water would get into said yard. I received no communication during the night, forecasting the height to which the water would rise, and the extent of the flood came as a complete surprise to me. When I left work, the water had risen to a height of about 2 feet in front of the office, and, as far as I could see, covered the tracks in the yard generally. * * * I saw Engineer Dent start with an engine and crew and try to get the cars out of .the yard to a place of safety. This was about 8 o’clock, or a little later, on the morning of August 26th. The effort to get at the cars was unsuccessful — due to a floating trestle.”

O. W. Sykes gives the following testimony:

> “On the night of August 25, 1908, I was working as yard clerk for the Southern Railway Company at its yard in Hamburg, S. C. At 1 o’clock a. m., *on*the morning of August 26th, I received car A. G. S. No. 12406 and car O. N. O. No. 15545 [being the ears containing the rice] from the Georgia Railroad. * * * I had the two cars referred to placed in a train of cars which was being made up for Charleston, S. C. * * * I have lived in Augusta all of my life, and in August, 1908, I had been working for the Southern Railway Company for 5 years. I had never seen the Savannah river anywhere near as high as it was in August, 1908. The rise at that time was very rapid and unexpected. I knocked off work at *6266 a. m. on the morning of August 26th. I went home and got breakfast, and came back.to the office about 7:30 o’clock a. m. I worked around the office until about 11 o’clock a. m., and then had to wade through water almost neck deep in order to get home.”

C. J. Blouut, chief inspector for the Southern Railway Company, has lived in Augusta for 40 years. He says:

> “I have never known the waters of the Savannah river to rise as rapidly as they did in August, 1908, and in that respect I consider the freshet in August, 1908, as unprecedented.”

H. L. Hungerford, superintendent of the Charleston Division, Southern Railway, testifies as follows:

> “I only know of the condition of the yard at Hamburg and the Savannah river, at the time in question, from reports that were telegraphed to me by the yard master of Hamburg yard. On August 25th the yard was in good condition. The stage of the Savannah river was reported as 22.3 feet on the gauge at Augusta, and a report wras issued from the Weather Bureau that the Savannah river would probably rise.to a stage of 33 feet at Augusta, which, according to previous records, would not do any damage to tracks or cars in Hamburg yard; but during the morning of August 26th the Savannah river rose very rapidly and went far higher than expected — the rapid rise being unprecedented, and unlooked for. By noon of August 26th_the river had reached the stage of 36 feet — continuing to rise and reaching a stage of 38.8 feet at about 2 a. m. August 27th.”

At another place, after repeating the statement that the Weather Bureau had published a warning, on the 25th, of a 33-foot stage of water within the next 24 hours, the witness says:

> “At 10:30 a. m., the next day, the gauge registered 34.4 feet and the river was rising at the rate of 0.7 feet per hour. A supplemental warning was then issued, placing- the maximum stage of 38 feet by midnight, and the warning stated that the entire city would probably be submerged. By noon the water was rushing through streets like a mill race.”

Plaintiff obtained judgment against the defendants, in solido, for $2,326.50, and defendants prosecute the appeal.

Opinion — As to the Appeal.

There is a suggestion in the brief of plaintiff’s counsel that the- appeal be dismissed for want of proper parties — the suggestion being based upon the assumption that there is no order of appeal in favor of defendants.

The motion and order relied on by defendants read as follows:

> “On motion of Hall, Monroe & Lemann, of counsel for the New Orleans & Northeastern Railroad Company and the Southern Railway Company, and on suggesting that a final judgment was rendered herein against both of these defendants,-in solido, on the 15th of November, 1910, the said judgment having been signed on the 21st of November, 1910, that movers are advised that there is error in said judgment to their prejudice, and that they desire to appeal therefrom, suspensively, it is ordered that, upon compliance with the requirements of law, they be granted a suspensive appeal from the said judgment, returnable to the Supreme Court of Louisiana on the 20th day of December, 1910.”

The bond was given by the defendants, and contains the recital that the appeal was taken by them; but the same thing might have been said of the bond in the matter of Voelkel v. Succession of Aurich, 118 La. 525, 43 South. 151, in which, however, the appeal was dismissed, because, in order to sustain an appeal, there must be an order as well as a bond, and the court was of opinion that the order there relied on could not be construed as an order in favor of any one having an appealable interest. In the case at bar we are of opinion that the order, though badly expressed, may be construed as an order in favor of the defendants, represented, for the purposes of the application, by their counsel.

Thus the applicants appear as counsel for the New Orleans & Northeastern Railroad Company and the Southern Railway Company, “and suggest” that a final judgment has been “rendered *agamst both of these defendants,** * * that movers are advised that there is error in the said judgment to their prejudice, and that they desire to appeal therefrom. * * * ” As there are no other defendants in the case in which the motion was filed than the two companies, there can be no doubt that the words “these defendants” refer to said companies. The *628movers, therefore, appearing as the counsel of the companies, suggest that a judgment has been rendered against the companies, and, having made that suggestion,, they, still as counsel of the companies, represent that they are advised that there is error in said .judgment “to *their*prejudice, and that *they*desire to appeal therefrom.”

The question then is: To which antecedents do the pronouns “their” and “they” apply? It had already been stated that the judgment complained of had been rendered against the companies, not against the counsel who were appearing in their behalf, and, notwithstanding the confusing, and perhaps ungrammatical, use of the pronouns, their obvious purpose is to designate the parties previously mentioned, in whose behalf the movers appeared, who alone were condemned by the judgment, who alone were complaining of it, and who alone were interested in appealing. In the ease of Voelkel v. Succession of Aurich, supra, the motion and order were so framed that the “movers” alone expressed themselves aggrieved .by the judgment, alleged to have been, rendered *against them*from which *they*alone prayed for an appeal. This case falls rather within the rulings made in the cases of Kraeutler v. Bank, 12 Rob. 458, and Ansley v. Stuart, 123 La. 334, 48 South. 953, and the appeal is sustained.

On the Merits.

Counsel for plaintiff have furnished the ■court with the report of a case decided by the Supreme Court of South Carolina, wherein the law applicable to the issues herein presented is so clearly and satisfactorily stated that, with an acknowledgment of •our indebtedness, we venture to appropriate the statement as follows, to wit:

> “In 1 Thomp. on Neg. § 28, the author says: ‘-In determining whether the due degree of care has been exercised in any situation, reference must be made to the facts and surroundings of that situation, and the question cannot be determined by abstract theorizing or idealizing. The question must be looked at as the defendant might have looked at it, situated as he was, and surrounded as he was. The jury ought to determine by their foresight, and not by their hindsight. Speaking with reference to this question, it has been quaintly reasoned that the fact that, after an injury occurs by accident, some man of genius discovers a superior method of preventing such accidents, does not show negligence in failing to use such method of prevention. Accordingly, that which never happened before, and which, in its character, is such that it would not naturally occur to prudent men to guard against its happening, cannot, when in the course of years it does happen, furnish good grounds for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.’

> “In Cornman v. Eastern Counties R. Co., 4 H. & N. 786, Bramwell, B., said: ‘In such case, it is always a question whether the mischief could have been reasonably foreseen. Nothing is so easy as to be wise after the event.’

> “In 21 A. & E. Ene. L. (2d Ed.), p. 489, it is said: ‘The mere fact that an injury might have been avoided by the adoption of certain precautions does not prove that there was fault in failing to anticipate and provide against it. Nor is the_ fact that, after the occurrence of an accident, it is seen that such accident might easily have been guarded against, conclusive of negligence. Thus, where the possibility of a particular occurrence is demonstrated only by its happening, there is no liability in negligence. But the fact that no such accident as the one complained of had ever happened before is not, of course, conclusive of the fact that there was no negligence.’_ In volume 13 of the same work, page 721, it is said: ‘An extraordinary flood is to be classed among the acts of God, which no human power can prevent or avert. Whether it wiE relieve the carrier from liability depends upon whether its results or natural consequences could, by the exercise of reasonable foresight and prudence, have been foreseen and guarded against. If the emergency was one that no human sagacity, guided by any one of the known principles of human reasoning, could have anticipated, the carrier will be relieved. If, on the other hand, its effects might have been foreseen by the exercise of reasonable düigence and prudence, a failure to do so would be negligence, and subject the carrier to damages, although the original cause was the act of God.’ And on page 722 of the same volume this rule is stated: ‘If the carrier discovers that goods intrusted to his care are in peril of injury or destruction by flood, then it becomes his duty to use, actively and energetically, all the means at his command, or which it might be expected that one engaged in such a business would possess, to meet the emergency and save the property from injury, and any neglect to use the means stated above, which prudent, *630sk-illful men in that business might ordinarily be expected to use in such an emergency, will subject the carrier to liability.’

> “It requires no citation of authority to sustain the proposition that after a carrier has discovered, or by the exercise of reasonable prudence and diligence should have discovered, that goods in his possession are subject to the perils of an unprecedented flood, or other vis major, it is his duty to exercise reasonable care and diligence to save them from damage or loss.”

> W. E. Ferguson v. Southern Ry. Co., 91 S. *C.*61, 74 S. E. 129.

Applying the principles of law thus stated to the facts of the case before it, the learned court found that, after the defendant (being the same defendant as in this case) was in a position to know that the flood (being the same flood that we are here considering) had broken all previous high water records, it was still in a position, by the exercise of ordinary diligence and the use of the means at its command, to have saved the plaintiff’s goods, and that, having failed to do so, it was liable for their value. We do not,' however, find that a similar condition existed in the case here presented. The negligence attributed to defendants is “articulately propounded” in the brief of plaintiff’s counsel, and the different charges may be considered in the order thus stated:

> 1. “They allowed the two cars, one shipped August 21st, and the other August 22d, 24 hours apart, to be in the same train in the Hamburg yard on the night of August 25th, without giving any reason for delay of first car.”

The petition imputes no negligence on the account thus stated, and the record is barren ■of evidence tending to show that there was .any unusual delay in the forwarding of either of the cars.

2. They brought the cars from a safe place in Augusta, and placed them in the lowest part of the yard, though the river, which had flooded all the ears in the yard in 1888, had been rising at' the rate of from 5 to 8 inches per hour for 36 hours, and the weather report of August 25th showed rainfall of 5.63 inches at Anderson, 102 miles above Augusta, and 3.65 inches at Calhoun Falls, just below Anderson.

About the only evidence as to the safety of Augusta, that we find in the record, is that which tells of the water running through the streets like a mill race, the destruction of life and property, the wiping out of a riverside railroad yard, and the washing down the river of some freight cars.

On the other hand, according to the oral testimony adduced, and a blueprint which purports to show certain features of the Hamburg yard, including the position of the cars that were destroyed, 33 feet of water “would not do any damage to tracks or cars in Hamburg yard,” and, up to 10:30 o’clock on the morning of August 26th, 33 feet was all that was predicted by the Weather Bureau, with the information above referred to, as to the rainfall, in its possession. The blueprint shows that though the water attained a height of 38.8 feet, it rose only 9 inches above the floors of the rice cars, so that, between the stage that was predicted and that which was attained, there was a margin of 5.8 feet, in order to consume which it was necessary that the water should rise higher than it had ever done before, and, in order that it should do so before the ears could be moved, it was necessary that it should *eowe down,*as it did come, in such volume as was never before known. In other words, it was not only the high stage eventually reached, but also the unexpected rapidity with which it was reached, that was unprecedented. And if the Weather Bureau, with its facilities for collecting information and its trained experts, who devote themselves to that work, were unable to foresee any danger greater than would result from a 33-foot stage of water, we know of no basis upon which the defendant can be 'held to have been negligent in not having done so, any more than could the citizens of Augusta, who lost their property and their lives, be so held.

*6323. The Weather Bureau having issued its warning of 33-foot water on the morning of the 25th, defendant was negligent in not foreseeing that its tracks and trestles would probably be undermined—

> “on account of the great quantity of lumber in the yards in North Augusta, which lumber was bound to dam up against the trestles and weaken them, if the water ever reached these lumber mills.”

The name “North Augusta” does not appear in the transcript, so far as we remember, nor is there anything there about lumber mills. There is testimony to the effect that “logs of wood and timber” and “driftwood” were brought down by the current and piled up'against the trestles; but there is also testimony showing that all the bridges above the mouth of Rocky river, as also 250 acres of an island below that point, were washed away, which could hardly have been anticipated from the Bureau warning of August 25th, but which may account for the logs, wood, and timber against the trestles.

4. They were negligent in putting the car of lime in the train with the rice cars, since it was bound to ignite if the flood proved to be as great as in 1888.

The flood in 1888 was only an'inch or so lower than that of 1908; but, according to the uncontradicted testimony, the people interested received more timely warning of its rise and approach, and the'warning of a 33-foot stage of water, from an official and authoritative source, was not a warning against such a flood. There is no attempt to show that it is unusual or bad railroading to put cars of lime in trains with other merchandise.

5. They were negligent in not attempting to move the rice ears until 7:30 a. m., or later, on the morning of the 26th.

The telegraph operator had gone on duty at 11 o’clock on the night of the 25th, and found the yard “entirely free from water,” and when the yardmaster left the yard, an hour later, “the river was not out of its banks, and no indication of any serious rise, more than there had been several rises previous to that date.” The Weather Bureau did not issue its supplemental warning until 10:30 a. m. of the 26th; but, in the meanwhile, on the return of the yardmaster at 7 o’clock, the steps were taken which are described by the witness Thompson. Just how high the water was at that time does not appear, but it could hardly have suggested any record-breaking stage, as it only reached 34.4 feet some *Sy2*hours later, and the impression that we get is that the greater volume of water came down after 7 o’clock, since it is shown to have been rising at the rate of 0.7 feet an hour, at half past 10, and Sykes, who seems to have experienced no difficulty in getting *to*the office at 7, says that at 11, when he returned home, he was obliged to wade “almost neck deep.” Looking backward, it is easy to see, and to say, that many things might have been done on the day and night of the 25th; hut, considering the situation as it then appeared, to those who were best informed (the officers of the Weather Bureau), the necessity for doing anything, except what was done, did not suggest itself. It did not suggest itself to the defendant, for the protection of its own property, or to the people of Augusta, for the protection of their property or their homes, and we cannot say that defendant was negligent in failing to realize the existence of such necessity for the benefit of the plaintiff.

6.It is said that defendants were guilty of negligence, in that the Bureau report of the 26th showed-34.4 feet of water, with a prospect of 38 feet; that, the distance from the rail to the floor of a box ear being only 34 inches^ they should have known that the lime was only 10 inches from the water, and would be in contact with it within 90 min*634utes, and yet they made no arrangements to extinguish the inevitable fire.

• As we understand the testimony, the water reached the floor of the car when it reached the stage of 37.9 feet (or 0.9 feet below the maximum), but just when that was the evidence does not show. There are two or three witnesses who testify that it was impossible to get to the burning cars without a “batteau,” that they had none, and that they availed themselves of the “very first one” that they were able to get. They were there, on the spot; they testify to a matter within their knowledge; there is no effort to impeach them; and not a syllable in the way of contradiction, or as showing that some one else might have done what they say they were unable to do. We must therefore accept their testimony as true.

> 7. “They were guilty of the grossest and most unpardonable negligence, because they waited 17 hours for some passer-by to get a boat. * * * During this 17-hour wait the passenger trains on the main line- were running, and there were boats, presumably, in both places, as one witness testifies that he rowed all over the yards in September, 1888.”

The only .testimony in the record upon the subject of the boat is that to which we have referred, and that to which the counsel refer. There is nothing about the running of the passenger trains, or about places where boats are “presumably” to be found; nor does it follow, as we think, that, because a witness had rowed around in a boat in 1888, he found the boat in less than 17 hours, or that he could have found one in 1908 in less time. In a suddenly inundated city, as when ships sink at sea, those who have boats are likely to need them for their own purposes.

> 8. “They are guilty of negligence because these floo.ds were caused by rains higher up the Savannah river (i. e., about 102 miles) than those that caused the flood of 1888. As they had greater time to make preparations, they should have known that this car of unslacked lime endangered the whole situation,” etc.

The only testimony upon the point thus suggested is to the effect that the people about Augusta and Hamburg had less notice of the flood of 1908 than of that of 1888, and that testimony, considered in connection with the reasons given, is conclusive of the fact.

[1] It being established, beyond controversy, that the proximate cause of the loss complained of was an unprecedented flood, which, standing alone, is a sufficient defense to this action, we are of opinion that the burden of proof rested upon the plaintiff to show that, • the flood notwithstanding, the loss could have been averted by the exercise by defendants of reasonable care and skill. Memphis v. Reeves, 77 U. S. (10 Wall.) 176, 19 L. Ed. 909; Elam v. St. Louis, etc., R. R., 117 Mo. App. 453, 93 S. W. 851; I. *& G.*N. R. R. v. Bergman (Tex. Civ. App.) 64 S. W. 999. Plaintiff has, however, not attempted to carry that burden, save by the cross-examination of defendants’ witnesses, and for the reasons assigned we do not think the attempt, as thus made, successful.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of defendants, rejecting plaintiff’s demand, and dismissing this suit, at its cost.

For written reasons to be handed down, his honor, the Chief Justice, dissents.

On Rehearing — On Motion to Dismiss.

BREAUX, C. J.

[2] Plaintiff filed the following motion to dismiss the appeal:

> “On motion of Hall, Monroe & Lemann, counsel for the New Orleans & Northeastern Railroad Company and the Southern Railway Company, and on suggestion, the final judgment was rendered herein against both of these defendants in solido on the 15th of November, 1910, that judgment having been signed on the 21st day of November, 1910, that movers are advised that there is error in said judgment to their prejudice, and that they desire to appeal therefrom suspensively.”

It is ordered that, upon compliance with the requirements of law, they be granted a suspensive appeal from the judgment.

*636It appears by the motion of appeal that the appeal was taken from a judgment rendered against both defendants. Bond was furnished accordingly. The two railroad companies were granted an appeal.

The appeal was taken by counsel representing the defendants.

Counsel are not parties in interest in the case. The appeal was taken for defendants. The motion has no merit.

It is overruled.

On the Merits.

Plaintiff claims the value of two cars of rice, valued, plaintiff alleges, at $2,326.50 net.

Plaintiff charges the destruction of the property to the negligence or want of care of the Southern Railway Company.

The following is an excerpt from the bill of lading:

> “This company or other carriers over whose lines the property may pass shall not be held responsible for loss or damage (unless to prove carelessness or negligence of their employés) resulting from the leakage of oil, and so forth; nor for loss or damage to any article resulting from heat, cold, fire, flood, storm, mobs, or other causes not subject to carrier’s control. Neither this company nor any of its connecting carriers shall be liable for any damage to or destruction of said property by fire, unless *such damage or destruction shall result directly and exclusively from their negligence or that of their employés, and unless such negligence shall be affirmatively established by the owner of said property."*(Italics ours.)

Plaintiff’s contention is that the clauses of the bill of lading before cited place upon defendants the burden of proving that the destruction of the property was due to accidental and uncontrollable causes, and that it was impossible to prevent the loss, and that they are not- chargeable with any act of negligence. This contention will be considered later.

There is no dispute about the value of the rice, but the defendants deny their liability for the loss of the rice as charged.

The rice and the cars were destroyed in the old Hamburg (S. 0.) yards of the Southern Railway Company near Augusta, Ga., on the afternoon of the 26th of August, 1908.

One of the defendants sued — that is, the New Orleans & Northeastern Railroad Company' — denied that plaintiff has a cause of action; the other defendant, the Southern Railway Company, urged that it is protected by a bill of lading in which it is stipulated that it would not be liable for property destroyed by accident or uncontrollable force. Many of the issues are of fact.

The yard clerk at defendant’s yard, Hamburg, S. C. swore that on the morning of August 26, 1908, he received car 12406 and car 15545 from the Georgia Railroad. They are the cars which were afterwards destroyed. He had them placed in a train of cars which was being made up for Charleston. The moving from a safe place to the Hamburg yard must have been previous to 6 o’clock, for he informs us that he “knocked” off work at 6 o’clock a. m. on the morning of August 26th. “The rise [on that morning] was very rapid and unexpected.”

Another employé, an inspector, Southall, swore that the cars referred to were received from the Georgia Railroad on August 25, 1908; that two of the ears — the cause of the accident — contained quicklime.

The question suggests itself: Why make up a train, with two ears of lime (after the high-water mark warning), in the lowest •part of defendant’s yard? This witness further swore that he never had seen, the water as high, except in the freshet of 1888, so that, according to this testimony, the rise was not entirely unprecedented.

An1 employé, Norris, inspector, swore that these two cars loaded with lime were received on August 24, 1908, and transferred to the general freight yard.

One bill of lading was dated August 22, 1908, and the other August 24, 1908. Al*638though shipped on different days they were both at Augusta at the same time.

The cause of the delay of these ears in Augusta is not explained.

The yardmaster for the Southern Railway Company, at Hamburg, S. C., testified that the condition of the yard was normal; that the yard was in his charge from 7 o’clock a. m., and that the switch foreman was in charge at night; that there was a full crew during the day and a full crew at nigbt, and one engine from 12 noon to 12 midnight; that he received a message from the superintendent on .the evening of August 25th that the indications were that there would be a rise in the Savannah river. Until 12 o’clock that night this witness said the river ' was not out of its banks, and there were no indications of a serious rise; that, when he went on duty at 7 o’clock a. m. of August 26th the river was rapidly rising, and in 35 minutes it had risen so rapidly that it covered a switchstand; that when he came on duty he saw that the river was rising, and he took an engine and tried to reach the cars. On the main track to old Hamburg there were three trestles, and one of these trestles was undermined by the rapidly running water, so that he could not get the engine over the trestle to reach the cars; that he moved all other cars to high ground, and weighted down the main trestle with cars, and one trestle in the old Hamburg yard also; that altogether 37 cars were destroyed in the old Hamburg yard by fire, caused by the water reaching a car of lime and slacking the lime and setting fire to the cars; that the cars in the Hamburg yards were made up into trains to be moved on the order of the inspector; that people living in Augusta for years did not anticipate the unprecedented rise; that a number of buildings were ruined, and others were destroyed by fire; that in the freshets several men were drowned in trying to escape from one of the buildings; that he had seen the river rise several times previous to August 26, 1908, and witnessed heavier rains, but had never seen the river extending over its banks, and he had never seen the river rise into the yards previous to August 26, 1908. He states that the car of lime, to which he has before alluded, took fire at 5 o’clock p. m. on August 26,1908. The water had reached the car before that time, but the lime with which it was loaded was slacking and did not ignite before 5 o’clock p. m. on the 26th of August.

The switchman of the Western *&*Atlantic Railway Company at Atlanta swore that on the 25th, 26th, and 27th of August, 1908, he was working for the Southern Railway Company at Augusta, Ga.; that the old Hamburg yard was submerged by water to *¿a.*height which put the water *several feet*in the freight cars which were standing in the yard; that he had been living in Augusta, Ga., for about 20 years, and had never seen the river as high, and that there was a rapid current in the Hamburg yard; that, while he has no record of the previous high water, the flood of 1908 was by far the highest and most destructive that he had ever seen. He reported for work at 7 o’clock in the morning of August 26th, and he and others reached the Hamburg yard about 20 minutes after 7 o’clock a. m., and that upon reaching the yard they had to get off the main line onto a side track in order to *let a, passenger train go by.*It seems that even at that time passenger trains could run over the tracks. Witness further states that at that time the tracks were under water, and in order to get to the old Hamburg yards, where the cars were, they had to change two switches; that this necessitated the cleaning out of sand and mud from between the rails and consumed some little time; that they then proceeded to the old Hamburg yards for the purpose of pulling out the ears; that in *640order to do this, they had to pass over three trestles; that when they passed the trestle designated as the “scale trestle” it sunk down 6 or 7 inches, showing that it had been undermined, and that when they passed the next trestle and pushed the tender upon it, it went down 10 inches; that they were afraid to go any further; that they were all on the top of the tender at the time, ready to jump off if the engine turned over; that, as they could proceed no further, the engineer jumped in his cab and stopped the engine; that they then returned, and in passing the scale trestle they noticed that it went down further than when they passed the first time; that then they pushed three gravel cars on the scale trestle to hold it down and keep it from floating away; that the other trestles had floated away; that he remained working in the yard until 11 o’clock; that the water was high and the current strong so that'they could do nothing to save the freight; that they did not at any time think the water would rise sufficiently high to get into the freight cars; that he had to return to his home to see to the safety of his family; that the floor of his home being under water, he had to remove his furniture to the second story; that the water rose rapidly and suddenly. He also mentions that the cars destroyed were located on tracks Nos. 1 and 5 in the old Hamburg yards, designated on the old blueprint.

We are impressed by the fact in all this that the attempt at rescuing property was only made after 8 o’clock in the morning of August 26th.

Henry P. Tyler, inspector, said:

> “The old Hamburg yards were submerged by water on the 26th and 27th of August, 1908. The water rose about 6 feet in the yards. There was a strong current, caused by the lumber, trees, and driftwood, which were banked up against the railroad trestle to a height of about 6 feet. There were two trains of freight cars in the yard, ready to go out. When they discovered the fire in the cars, they endeavored to find a boat. Telephone communications,” he said “had been abandoned, as the line by the rise of the water could no longer be used, and they had to wait until some one happened to come within hailing distance in a boat. After a time they did find a boat. He and three others rowed out to the train of cars that were burning and put out the . fire by throwing-buckets of water on them. They stopped the fire just before it reached a car load of sheep and saved them. There were logs, wood, and timber floating in the current. He was upon the trestle of the Hamburg yards about 8 o’clock a. m. of August 26th, and helped to move_ away the drift, so as to try and keep an opening under the trestle to let the current flow through. This was before he went in the boat to help put out the fire in the freight cars.”

The inspector for the Southern Railway Company, Mr. Benson, testified that on August 25, 1908, there was no water in the Southern Railway Company’s yard at Hamburg; that on the morning of August 26 th he reported for work at 7 o’clock, and at that time the water had just reached the rail in front of the block office, and from then on the water rose at an increasingly rapid rate until it finally reached a height of 5% feet in the yard, with a rapid current flowing through. He was employed at this place as early as 1888. During the freshet that year (1888) the water ran over the yard; that the current was not as strong in 1888; that the river was higher in 1908 than in 1888; that the overflow was unprecedented; that at half past 8 o’clock on the morning of - August 26th he saw Engineer Dent, with his crew, try to reach the cars which were stationed on tracks Nos. 1 and 5 in the old Hamburg yards; that when the tender of the engine was pushed upon the scale trestle he saw it sink several inches, and a few minutes later he saw them abandon the effort to reach the cars in the old Hamburg yard; that about 2 o’clock in the afternoon a fire broke out in one of the ears; that they could not go to the rescue of these cars, because they had no boat; that the next morning they found a boat, and that he and three other men rowed to the cars and stopped the fire.

*642Over 20 witnesses have testified. For that reason, we will endeavor to abbreviate from this on.

All witnesses agree in stating that the Hamburg yards were dry and free of water on the 25th of August, 1908. Several of the witnesses reported to work at about the usual hour (7 o’clock). Some formed part of the crew, and the other employés at other occupations in and about the yards. Why did they not make a serious attempt to move the cars on the morning of the 26th when they reported for work?

It also appears that the cars containing plaintiff’s rice were taken to the Hamburg yards about 1 o’clock on the morning of the 26th of August, 1908.

The question arises: Why was it that they put the cars in the low old Hamburg yards after they had received warning of the coming flood?

On the 26th of August, 1908, there was some delay in the movement of the engine in order to *allow a passenger train to pass, and one of the witnesses testified that about this time the rails and switches in the Hamburg yards were covered*by water, and, in order to get to the tracks, upon which the loaded freight cars were standing, it was necessary to change switches.

The night operator testified that he worked as night operator from 11 o’clock p. m. on the night of the 25th until 8 o’clock on the morning of the 26th of August, 1908; that he received a communication on the night of the 25th forecasting the height the water would rise. When he left .the office in which he was busy on the 26th, the water had risen about 2 feet in front of the blockhouse, and as far as he could see covered the tracks in the yards generally.

The superintendent, Hungerford, testified that on the 25th of August, the stage of the water of • the Savannah river was reported as 22 feet 3 inches on the gauge of Augusta, and that a report was issued from the Weather Bureau of a probable rise to a stage of 33 feet at Augusta; that on the morning of the 26th the Savannah river rose rapidly, higher than had been anticipated by the before-mentioned forecast; that by noon of August 26th, the river had reached a stage of 36 feet, continuing to rise and reaching a stage of 38 feet 8 inches about 2 o’clock a. m. on August 27th; that excessive rains fell in the northeast portion of the state from the 24th to the 26th and caused great damage by floods and the rapidity of the current. At 10 o’clock on the 26th, the gaugp registered 34 feet and 7 inches, and the river was rapidly rising. At that time a supplemental warning was issued by the Weather Bureau, placing the maximum stage at 38 feet by midnight.

The defendant contends that the water of the Savannah river was within its banks when the gauge was 33 feet. This is significant if the water was within the banks. There was no overflow up to that time on the 26th, and it follows that the cars could have been moved.

We infer that it rose, according to defendant’s theory, above its banks after the gauge rose above 33 feet.

The gauge of water, according to the last above mentioned witness, was 34 feet and 4 inches at 10 o’clock. From this it follows that the depth of water was 1 foot and 4 inches in the railroad yards; but previous to that, when the gauge was at 33 feet according to some accounts the river was not over its banks.

The yard conductor, C. W. Sykes, testified that the cars in question, in which the rice of plaintiff was, formed part of the train which was to leave for Charleston, {3. C. He says that he left the yards at 6 o’clock, went to breakfast, and came back to the office at half past 7 o’clock a. m. He worked in the office until 11. o’clock, and then *644had to wade in water neck deep to return to his home. That was all he did. Not the least warning appears to have been given to any one in regard to the rising waters, of which he had received notice.

A close reading of the evidence compels the conclusion that there was not sufficient forethought on the part of the officers in charge of the railroad yards. We have seen that the river was rising rapidly on the morning of the 26th of August. Some of the witnesses testified that by 7 o’clock it 'had covered the switch tracks, and yet nothing was done to protect property. Leisurely enough, the employés went about their business and gave very little concern to the rising waters. Those who did attempt to save property (if what they did can be considered in that light) displayed very little activity, beginning at 8 o’clock, taking out a few cars and leaving others in the old Hamburg yards. That is all they did. These yards were submerged by water to a height above the floor of the cars. The question arises: Was it possible, before the waters reached their greatest height, to move the cars to a safer place than where they were hauled to on the morning of the 26th of August; that is, to the old Hamburg yards? We have noted, before 8 o’clock or 8:30 o’clock a. m., not the least attempt was made to move the ears out of the yard where they had been placed. Mr. Benson, inspector of the Southern Railway Company, testified that on the morning of the 26th of August, he reported at the Hamburg yard at 7 o’clock to go to work, and at that time the water had just reached the rail in front of the block office. There were a crew and an engine in the yard. Why were they not put at work at that time to save the freight?

Another witness, the night operator, renders it still more evident that it was possible to move the train in the morning, for he says that when he went to work the yard was entirely free from water on the 26th of August in the morning. An attempt was made to rescue the cars between 8 and half past 8 o’clock a. m. It failed. They went too late to rescue these cars. There had been ample time to save them.

The oral testimony leads to the inference (as well as the blueprint in evidence) that the old Hamburg yard is lower than the new yard. According to the blueprint in evidence, the water was quite above the rails of the tracks and rose into the cars, while at the yard and telegraph office it was only 5 inches over the rails. This was one of the reasons why they should have been careful not to run the cars into the old yard (the lowest place), after having received notice of the rise of the waters.

They should have gone to the old Ham-brag yard and put out the fire. This they did on the 27th when the waters were higher, as witness states, than they were on the 26th, and still they met no difficulty in extinguishing this fire.

One of the reasons given for not going to the 9ars on fire the day previous, as witnesses state was that they had no boat, and waited for a boat to come in hailing distance in order to cross over to the old Hamburg yard. It seems no boat came on the 26th. It does seem strange that near a city a boat could not be gotten on the first day. We do not infer that they were cut off entirely from the city, where there were boats.

The rise of the waters in the Savannah river over its banks was not entirely unprecedented, although the rise of 38 feet and 8 inches was. Had preparations been made to meet the usual rise, the result would have been different.

Prom the following, it is made evident by the records of four of the floods, indicated by the asterisks infra, from the year 1888 to and including the year 1902, the waters by which Hamburg was visited, were higher than they *646were on the morning of the 26th, when the defendant made an attempt at rescuing cars:

> Year. Date. Height.

> 1888 September 11. *38 ft. 1% in.

> 1891 January 15. 29 ft. 5 in.

> 1892 January 11. 30 ft. 6 in.

> 1894 April 6. 29 ft. 4 in.

> 1S95 February 8. 31 ft. 0 in.

> 1896 April 4. 21 ft. 3 in.

> 1897 March 9. *35 ft. 5Vs in.

> 1S98 October 11. 27 ft. 9 in.

> 1892 July 10. 30 ft. 3 in.

> 1900 September 3. 28 ft. 5 in.

> 1901 February 14. *32 ft. 8 in.

> 1902 March 1. *34 ft. 7 in.

Other years between 1888 and 1908, than those above noted, the rise was not over 27 feet.

These floods were frequent, and yet defendant remained indifferent, and even sent its cars to the lowest places on the yard, where they were permitted to remain without making a serious and timely attempt to take them away.

From all this evidence we are led to the inference, which we think is positive, that there was negligence. A little timely activity would have brought about a different result, and would have saved plaintiff’s property, or would have placed defendant in a position to successfully defend itself.

Unquestionably the river was rising rapidly on the morning of the 26th at 7 o’clock; in 35 minutes it covered the switch tracks. It does not seem that anything was done to prevent the destruction of the cars. Leisurely enough, the employés went about their respective occupations, and now, when they give an account of themselves, it does seem as if they wish to lay all the trouble on the rising waters, although they remained indifferent when they should have exerted themselves.

From the first there is evidence that the trestles were unsafe, prematurely weak, so much so that early in the rise they were washed away. Trees and lumber were allowed to bank up as they drifted down against these trestles. Nothing was done to relieve the situation at this point, although trees were pressed down the current, passing under and undermining the trestles. A former employe came to the place and saw the danger. He moved away the banked-up débris as well as he could, though he was not in the employ of the defendant. When asked why he had worked as he had, his reply was that he wished to help the companies. He, the *former employé, worhed to save property,*but the *railroad people did nothing to move away this obstruction.*The employés were not as mindful of the necessity of taking care of freight as they should have been. They thought, it may be, that the waters would not rise sufficiently high to get into the freight ears. In this they assumed too much. The reports received in regard to the flood did not justify that assumption. The cars were ready to be hauled away. No one testified why they were not hauled to destination.

[3] In the first place, in regard to vis major: In regard to the evidence of the height of the water, the negligence charged, and the damages, and upon whom lies the burden of proof?

The Code (article 2754) clearly states that, in order to be relieved from liability, the carrier must prove *“that such loss or damage has been occasioned by accidental and uncontrollable event.”*(Italics ours.)

The law requires him (the carrier) to prove the uncontrollable event which he alleges. Civil Code, arts. 1923, 2219, 2232.

The following decisions are pertinent: Montgomery & W. P. Rice Co. v. Moore, 51 Ala. 394; McCarthy v. Louisville & N. R. R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; Central R. R. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128; Pittsburgh, C., C. & St. L. R. Co. v. Mitchell, 175 Ind. 196, 91 N. E. 735, 93 N. E. 996; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426, *648affirming 5 Bosw. (N. Y.) 395; Heyl v. Inman S. S. Co., 14 Hun (N. Y.) 564; Dunson v. New York C. R. R. Co., 3 Lans. (N. Y.) 265; Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; Fentiman v. Atchison, T. & S. F. R. Co., 44 Tex. Civ. App. 455, 98 S. W. 939.

*[4]***But, as carriers are bound to some vigilance, if a little vigilance and forethought might have prevented the loss, the defendants are liable for the amount of the loss. They failed to prove ordinary care.

Under the French law, if the management, in case of an emergency on account of an accidental or uncontrollable event, is that of the father of the family, it is a complete protection.

Defendants’ managements were not of that character. They were not sufficiently prudent and cautious. There was a general rise of all the waters above; they saw the rising waters; it behooved them to give attention to the threatening condition.

[7] They invoke the forecast of the Weather Bureau; that this Bureau did not give notice of the highest rise of the waters within an inch. The forecast of extreme height was 38 feet, and the rise was 38 feet *8Y2*inches.

This complaint, directed against the Weather Bureau, is not a complete defense unless reasonable activity was brought to bear in due time. It was not. The railroad people were warned to better protect themselves against the accident.

There was unconcern. As evidence of this, we recall that the yard conductor, on the morning of the loss (from 7 :30 to 11 o’clock) worked around the office, and then went home.

There were an engine and crew in the yard; they were not timely called upon to prevent the loss, or, if called, it is not proven. It was an emergency; some concern ought to have been shown to prevent the destruction of the property. This is the impression created by the evidence; if it were different, if those in authority and those under their orders on the occasion were sufficiently active, the evidence on the subject is weak and not convincing. The emergency required a little more vigilance than usual. There was possibility of foreseeing things, and of moving in the direction of saving the property.

[8] As to the waiver in the bill of lading *covering*risks: It is *some*protection to the carrier, barring his own negligence. But, none the less, for loss occasioned by ordinary negligence, the carrier is liable notwithstanding an agreement. Insurance Co. v. Railroad Co., 20 La. Ann. 302.

If there is a special agreement, it will not ■ be a protection for the carelessness or unskillfulness of the crew. Roberts v. Riley, 15 La. Ann. 103, 77 Am. Dec. 183.

In another decision, it is decided that no waiver will be considered as exemption from liability from leakage occasioned by his fault or negligence of himself or his agent. Thomas v. The Morning Glory, 13 La. Ann. 269, 71 Am. Dec. 509.

Similar views are expressed in Darrall v. Southern Pacific R. R. Co., 47 La. Ann. 1455, 17 South. 884; Price v. The Uriel, 10 La, Ann. 413; Oakey & Hawkins v. Gordon, 7 La. Ann. 235; Van Horn v. Taylor, 2 La. Ann. 5S7, 46 Am. Dec. 558; Peters v. Railroad, 16 La. Ann. 222, 79 Am. Dec. 578; Frank v. Adams Express Co., 18 La. Ann. 279.

[5] On the rehearing only, the contention is that the suit is to be governed by the Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), interpreted in the Croninger Case, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. E'd. -. But if it is to be governed by. that decision, defendant would not be in much better position.

*650We are not impressed by that view.

Admitting for a moment all that is claimed under the Carmack amendment, under any of tbe laws of this country, indifferent railroad people, who receive freight to be transported some distance, and who, just before tbe waters of a storm bave flowed down, stop tbe cars on tbe way, and run them to tbe lowest part of tbeir yards, and place them next to cars loaded with quicklime, easily ignited by water, and leave them at that place while other cars are taken out, and who make no attempt to haul them out, although tbe waters are rising slowly enough for such work after warning given, are not protected from the charge of negligence under tbe law. Tbe decision in Railroad Co. v. Reeves, 10 Wall. 179, 19 L. Ed. 909, cited by defendants, is not determinative of •the issues considered from any point of view. In this last-cited case, reviewing another decision,- the court, through Justice Miller, said, in substance, that the law requires some skill and forethought of carriers.

If judged from that point of view exclusively, the carrier is not excused unless he shows some activity in protecting property in case of necessity.

As relates to Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed.-, on which reliance is placed: It does not appear that the rules of evidence have been changed 'by the interpretation laid down in that decision, so as to shift the burden and to have the effect of nullifying the Civil Code of this state upon the subject.

The amendment known as the “Carmack amendment” invalidates the provisions of any state law nullifying contracts limiting the liability of a carrier for loss or damage to the agreed or declared value. The amendment is silent about evidence. There is a great difference between the “agreed” value of freight, as set forth in the bill of lading, to be accounted for in case of loss, and the onus of proof in case of loss of freight.

To return for a moment to the Croninger Case, above, it appears that, under the laws of Kentucky, the contract limiting the plaintiff’s property to the “agreed value” gave rise to the question at issue. The federal Supreme Court held that the Carmack Amendment of the Interstate Commerce Act was controlling as relates to the value of property lost. The “value clause” is expressly referred to in the decision.

We annex a copy of the amendment in the margin,1 containing all that there is upon *652the subject in the federal interstate commerce law. Not one word expresses the intention of repealing the rule fixing onus of proof under state statutes.

There is no necessity of citing our decisions, as they uniformly hold that the onus is with the defendant, save two, as they are specimens of the others: Patton v. Pickles, 50 La. Ann. 857, 24 South. 290, and Spur-lock v. Traction Co., 118 La. 1, 42 South. 575.

The state law should undoubtedly stand as it is, as it is not in conflict with federal law or jurisprudence.

The burden was on the defendant to sustain the following allegation in its answer:

> “Respondent avers that this happened without any contributory negligence on its part, and that the sudden and unprecedented flood, which could not have been anticipated, with the resultant fire, was the proximate cause of the destruction of plaintiff’s property. Respondent avers, further, that the cars were not unreasonably delayed, and that nothing could have been done by respondent which was not done to save the property.”

Defendant admitted the loss and averred that it did all it could.

It should have proven the averment.

The report of the Weather Bureau showed that the water had been rising steadily for two days, faster on the second than on the first day.

The Supreme Court of South Carolina, in Ferguson v. Southern Railway Co., has explained its views in a well-considered opinion relative to the same storm of August 24, 1906. See same title, 91 S. C. 61, 74 S. E. 129. We insert extract from that decision relating to this same flood:

> “The rule upon which this case must be decided was stated thus in Slater v. Railway [29 S. C. 96, 6 S. E. 936]: ‘Where an act of God

> causes injury to property in the hands of a common carrier, and such act is the sole cause of such injury then the proof of this fact is a perfect shield. But if there be any negligence on the part of the carrier, which, if it had not been present, the injury would not have happened, notwithstanding the act of God, the carrier cannot escape responsibility. And the onus is upon the carrier to show, not only that the act of God was the cause, but that it was the entire cause; because it is only when the act of God is the *entire*cause that the carrier can be shielded. * * * ,

> “ ‘But the fact that such an accident as the one complained of had never happened before is not, of course, conclusive of the fact that there was no negligence.’ [21 A. & E. Ene. L. (2d Ed.) p. 489.] In volume 13 of the same work, p. 721, it is said: ‘An extraordinary flood is

> to be classed among the acts of God which no human power can prevent or avert. Whether it will relieve the carrier from liability depends upon whether its results or natural consequences could, by the exercise of reasonable forethought and prudence, have been foreseen and guarded against. If the emergency was one that no human sagacity, guided by any of the known principles of human reasoning, could have anticipated, the carrier will be relieved. If, on the other hand, its effects might have been foreseen by the exercise of reasonable diligence and prudence,_ a.failure to so do would be negligence and subject the carrier to damages, although the original cause was the act of God.' And, on page 722 of the same volume, this rule is stated: ‘If the carrier discovers that goods

> intrusted to his care are in peril of injury or destruction by a flood, then it becomes his duty to use actively and energetically all the means at his command, of which it might be reasonably expected that one engaged in such business would possess, to meet the emergency, and save the property from injury, and any neglect to use the means stated above, which prudent, skillful men in that business might ordinarily be expected to use in such an emergency, will subject the carrier to liability.’

> “It requires no citation of authority to sustain the proposition that after a carrier has discovered, or by the exercise of reasonable prudence and diligence should have discovered, that goods in his possession are subject to the perils of an unprecedented flood, or other vis major, it is his duty to exercise reasonable care and diligence to save them from damage or loss. * * *

> “Plaintiff’s goods were destroyed at Kingville, *654which is a station on defendant’s road from Columbia to Charleston, and is the point of junction of that road with anothér road operated by defendant, running to Marion, N. C., via Camden and Yorkville, the destination ox plaintiff’s goods. Kingville is situated in the fork of the Congaree and Wateree rivers, which unite about seven or eight miles below to form the Santee. It is between three and four miles from the Congaree and from five to seven miles from the Wateree. It is in the edge of the swamp of the Congaree, and the land between it and each of the l'ivers is low, flat, swamp land, subject to inundation by freshets. The station is built upon made land, and the railroad tracks are raised several feet above the adjacent swamps by embankments and trestles. The rivers meet approximately at right angles. Just below their confluence, there is a high bluff on one side, and the highlands come down pretty close on the other, so that the swamp is narrow. Therefore in times of very high water in both rivers the passage is inadequate, and the waters are dammed up and thrown back in the swamp above.

> “Besides the two lines mentioned, the defendant operates other roads in the state which pretty well cover the territory traversed by those rivers and their tributaries, which form the Congaree and Wateree, and it has along its road telegraph lines as a means of communicating intelligence as to conditions affecting the proper operation thereof.

> “The United States government has a Weather Bureau at Columbia which co-operates with the railroads in obtaining and sending out information relative to the physical conditions which affect the operation of the roads. It maintains gauges at different places on the principal rivers, from which reports are sent in, and a record of them is kept. In times of high water in the rivers, flood warnings and bulletins giving information of the present and probable near future conditions are issued, and sent to those who are interested. Besides its ■ own sources of information, the services of this Bureau were at defendant’s command. Ordinarily, therefore, the defendant would be expected to keep its agents advised of the approach of floods of such magnitude as to cause apprehension of danger. The testimony shows that, in this instance, the defendant was advised of the conditions existing throughout the state on the streams tributary to the Congaree and Wateree; that it knew that, beginning about the 19th of August, rains had been continuously falling over the watersheds of these streams, and that, beginning about the 23d, they became unusual, both in quantity and in the extent of territory covered; so that, by the 24th, nearly all the streams in the upper part of the state began to rise, and on the 25th and 26th they had reached the flood stage. It was known that the floods in some of the larger of these streams were unprecedented in magnitude and destructive power. It was also known that they would surely find their way into the Congaree and Wateree. Defendant also knew the records of previous floods in these rivers.”

The court can take notice of this rise of the waters, particularly as it is the same storm that was felt in all parts of the state. Those occur from time to time in the Eastern and. Western states. In our level section of country we have not the same experience, except when the waters break through the levees of the Mississippi. A crevasse may illustrate:

If a railroad crew were to receive notice through the Weather Bureau that a crevasse such as the Himalaya was flowing at some distance above, and that the waters, would rise at a place below, and that the whole place would be submerged within a certain time mentioned, would it be thought good management if the railroad people were to remain indifferent, although they had ample means to save everything?

They saved a part of the property — moved some of the cars at the station where they had been placed, and allowed others to remain untouched. If they could so easily save a part of the property, why did they not save the whole?

For reasons stated, it is ordered, adjudged, and decreed that the judgment of this court, heretofore rendered, is avoided, annulled, and reversed.

It is ordered, adjudged, and decreed that the judgment appealed from is affirmed, except as to the date of interest, which will now begin to run from the date of the judgment, instead of from judicial demand. In all other respects, the judgment as amended (as to interest) is affirmed. Appellees to pay costs of appeal.

MONROE, J.

I adhere to the views expressed in the original opinion, and, for reasons hereafter to be handed down, dissent from those herein expressed. See 61 South. 722.

1

 “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.

“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

The original Interstate Commerce Act of February 4, 1887, was extensively amended by Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1911, p. 1281).

The above amendment is an excerpt from the opinion ih Adams Express Co. v. Croninger.

The following are the dominant features of that account as found in the opinion:

First. It affirmatively requires the initial carrier to issue “a receipt or bill of lading therefor,” when it receives “property for transportation from a point in one state to a point in another.”

Second. Such initial carrier is made “liable to the lawful holder thereof for any loss, dam*652age, or injury to such property caused by it.”

Third. It is also made liable for any loss, damage, or injury to such property caused by “any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass.”

Fourth. It affirmatively declares that “no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.”

The foregoing relates to limitation as to value, not to negligence.

And, as to the difference, the Supreme Court of the United States said: “The limitation as to value has no tendency to exempt from liability for negligence.” Hart v. Pennsylvania R. R., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717.