Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-13
SUPREME COURT.
DECISION OF CASE FILED JESTER
Day.

Day.
Ann Shrlver respondent, VS.. The Sioux City and |
st. Paul Railroad company appellants.
SYLLABUS.
witness accustomed to packing marble
slabs for transportation may be asked whether
in his opinion certain mode of packing for
transportation was proper. Though an owner
who improperly packs goods for transportation
by common carrier, cannot recover for inju-
ries to the goods to which the improper packing
contributes, he may recover for injuries hap
pening independently Of the defect in packing.
A common carrier of goods cannot by contract
exonerate himself from liability for loss
or injury to goods happening through his
negligence, or that of his agents, nor limit his
liability to injuries caused by gross negligence,
where there is a contract limiting the liability
of common carrier of goods the burden is on
the carrier and not on the owner to show from
what cause a loss or injury occurs. Where
goods are delivered to the first carrier in a line
of several different carrirrs to be transported
over the entire line, there being direct evi-
dence to show where they were injured, the
jury, if there is nothing in the case to render
that the goods reached the hands of the last in
in the same condition as when delivered to the
first in the line. Judgment affirmed.
OPINION.
At Tiffin, Ohio, the plaintiff shipped with
the Baltimore and Ohio railroad company
two marble slabs packed in close box, con
signed to herself at Worthington in this
State, and upon the requirement of the COM
pany executed an agreement releasing
the company and each and every
other company over whose line the goods
might pass to their destination from any and
all damages that might arise from certain
specified causes and ''from any cause not
arising from gross negligence of the said
company or companies, its or their officers
or agents." the slabs passed to their destin-
alton over the Baltimore 81 Ohio and two
other railroads to St. James in this State and
over the road of the defendant from St.
| James to Worthington, and when delivered
| by the defendant to the plaintiff at Worth
| ington, were found to have been broken.
This action was brought to recover damages
for the injury. At the trial an objection was
made to question to witness accustomed
| to packing marbles for trans
portation, calling for his opinion
upon whether these marbles were properly
packed. It was a case for expert testimony
and the objection was properly over-ruled
The court charged the jury in substance thai
common carriers of goods cannot by contract
absolve themselves from the consequences O.
their own negligence, and that the contrac
proved could not be allowed to have that OBJ
Grafton, that the burden of proof to show or
binary care was on the defendant, and thai
the jury might presume negligence from thu
fact that goods we're found to be damaged
when delivered to plaintiff at Worthington
Defendant excepted to these proposition
| in the charge, and requested instruction tina
the contract was reasonable and that the plain
tiff could not recover without gross negli
gence Of the defendant, which the court de
cGned. Defendant also requested an in
struction that if the marble was so imprOp
erly packed by the plaintiff that it could no
be handled with reasonable care in tn
transportation without injury the plaintiff
cannot recover. The court gave this in
struction, with the qualification ''unless tn
injury happened Independent of the defect
in packing To this defendant excepted
The qualification was correct, for Will
plaintiff could not recover fo
an injury to which her negl
gence contributed no negligence of hers un
connected with the cause of the injury coul
defeat recovery.
The charge presents the question of th
power of common carrier of goods to linn
by contract his liability as it existed at con-
mon law. 1t is perhaps to be regretted tina
courts have allowed any relaxation of tn
common law rule of liability. But that con
mon carriers may by special agreement Dual
ify to some extent his liability is too we
settled by decisions to be denied. How ia
he may do it the authorities are not entirel
agreed. The greater number of authorize
in the United States hold and sint
Christianson VS.. American Express Con
pany, Is MINI. 27O, is to be taken as tt
settled doctrine of this court that a commo
carrier of goods shall not be permitted t
exonerate himself by contract from habil
ty for his own negligence, or the negligent
of the agents whom he employs to perfor,
the transportation.
The contract in question seeks to exone
ate the carrier from liability for all excer
gross negligence, and is obnoxious to Il
rule. The charge of the court upon it, an
upon the rule was correct. Where there is
contract limiting the liability to injuri
caused by the negligence of the carrie
which party the owner, or the carrier, mu
show from what cause the inju]
or loss arose, is a question upo
which there is some conflict of author
ties. Harris VS.. Packwood, 8 Tarnet rs
Marsh VS.. Horne, 5B & G, 322; French Y
Buffalo, N. Y, & Erie r. r. Co., 4 Keye
: 1O8; Sayer VS.. Portsmouth, S. & E. r.
, Co., 81 Maine, 228: and Killiman VS.. Unit,
! States Express Co., 8 Kan. 2O5 affirm Il
- rule without giving any reason for it, to
:. that the burden is on the owner. On Il
:, other hand, in Greenleaf Ev., sec. 219, tt
;. rule is stated, "and if the acceptance of Il
!. goods was special, the burden of proof
= still on the carrier to show not only that Il
= cause Of the loss was within the terms of Il
exception, but also that there was on /
= part no negligence OF want of due care
= and this rule is followed in Smudler VS.. III
= lard, 2 Rich. (sec) 2S6; Baker VS.. Brunso
= 9 i'd, POI; Davidson vs.. Graham, Ohio
131; Graham vs. Davis, 4 i'd, 362, al
Whitesides VS.. Russell, 8 Ser
y & Weitts, A. The latter cas-
# are most consistent with principle. F
It where there is no contract there has nevt
t so far as we know, been any question th
|. the carrier, to escape liability, must show t
# loss to have accrued from one Of the caus
which the law excerpts from his liabilit
l. No good reason can be given why the burd
d should be changed because he has by CO
). tract added other exceptions to those ma
, by the law as to where the burden of pro
was. The charge was correct.
There was some evidence from which t
d jury might find that when delivered to
q B. & c. railroad company the slabs were
good condition. Between that company al
the defendant there were two intermedia
carriers. There was no direct eviden
showing upon what part of the line col
4 posed of the four railroads or in the han