The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-12-03
APRIL TERM, A. d. 1892.
OPINION OF DOLE, j

The plaintiffs claimed of the de-
PENDANT corporation $1504.41 for
loss of goods shipped by them on
the defendants steamship Likelike
on the 18th and 18th days of July,
1891, to be delivered at Paia and
Wailuku, which are inland places
on the Island of Maui, connected
by rail with the seaport of Kahu-
iui. The Likelike arrived at Ka-
hului July 18th, somewhat later
than usual, and the goods in ques-
ton, with other freight, were landed
but were not forwarded that day to
their destinations by rail according
to the usual custom. Early the
same evening a fire broke out in
the warehouse where the goods
were temporarily stored, and they
were all consumed. The jury found
for the plaintiffs, and the defendant
excepted to the verdict as against
the law and the evidence, and
moved for a new trial and also
excepted to part of the charge of
the court wherein the jury was
instructed as follows:
''It is for the jury to say whether
the conditions in the receipt are
applicable only to marine losses
occurring while the goods are on
the defendants route, and are not
inconsistent with the defendants
undertaking to transport them be-
yond its route over the line of the
Kahului railroad, acting as its
agent.
off an agreement was made be-
tween the plaintiff and the defend
ant releasing the defendant by &C
cident or fire, loss from such
cause would not be defense TO this
action unless defendant shows that
the goods were lost in consequence
of no lack of due precautions to
guard against fire, and to rescue
the goods in case of fire."
The defendant also excepted to
the refusal of the court to charge
as follows:
"That the exemption from liabil-
ity for loss by fire extends to the
whole distance which the goods
were to be carried.
"That the burden of proof to show
that the loss resulted from the neg
ligence of the carrier is upon
plaintiff, fire being one of the ex-
ceptions of the bill of lading. Pro-
vided the jury find the bill of lading
covers the whole distance of trans
portation."
The motion for new trial was
overruled by the presiding justice,
and exceptions taken to this court
In regard to the exception that
the verdict was against the law
and evidence, it is clear that there
was sufficient evidence to go to the
jury-evidence as to absence o
precautions for the prevention O
fire, absence of provision fo1
promptly discovering fire wher
started, or for saving goods during
fire; and evidence of the infamm
able character of the buildin;
heightened by the presence of com
bustibles and explosives miscellan
eously stored, all going to the ques
ton of negligence.
This being the case, the cour
should not disturb the verdict Oh
this ground.
The instructions to the jury eX
cepted to by the defendant were, il
brief, that the construction of tn
bill of lading was within their pro
vince, and that the burden of proc
was on the defendant to show tina
the loss did not occur through it
negligence.
AS to the latter point, l am c
the opinion that the instructor
was correct. 1t is true that ther
are authorities the other way, but
believe that to hold common cal
rier liable for the loss or damage c
goods which he has received i
good order, unless he can accoun
for the loss or damage through on
of the excepted causes and withou
negligence on his part, is accordin
to sound legal principles. Such ha
been the view of the justices of TIL
court so far as the question Ia
arisen in litigation. Chief JustiC
Lee in La Motto VS.. Angel Il Hay
245-6) used the following lar
guage: eve are asked to pr
sumo that the damage was not til
result of negligence on the part (
the carrier, but in the absence {
all evidence On the subject "
think the legal and just presuml
ton is the other way. If merchal
disc in good order is entrusted to
carrier, and it arrives at its destil
alton in damaged state, the ca
rier is responsible unless he ca
show that the damage is not tt
result of his negligence. The ont
is upon the carrier to show no
the goods were injured, and n
upon the merchant. To impo;
upon the merchant the obligatiC
to prove negligence on the part
the carrier would be a great hare