The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-19

have been thrown on the issue, for it
would still remain TO be shown what
amounted to due care and no more
at the time the changes were made.
To allow evidence OF this kind would
be in violation of the rule which for
bids the introduction of issues on
collateral facts which furnish no
legal presumption of the principal
fact, thereby tending to confuse the
jury, distract their attention from
the main issue, and prejudice them
against the defendant.
The Kansas and Pennsylvania
courts hold such evidence admissible
when the subsequent changes are
made soon after the accident aud are
such az show that they were sug-
gested by the accident and were
made to remedy the defects which
caused it, but these courts also con-
slider the evidence as almost worth
less and give no satisfactory reasons
for its admission at all; indeed, in
the cases in which such evidence has
been held admissible, the question
was but little considered, the point
not having been an important one in
those cases. The Supreme Court of
Minnesota In several of its earlier
decisions also held such evidence
admissible under such circumstances,
but In a later case, 1t said, over
ruling its former decisions, that
ION mature reflection, we have con-
cluded that evidence of this kind
ought not to be admitted under any
circumstances, and that the rule
heretofore adopted by this Court is
on principle wrong" Horse IS. MINI.
If So. L. Ry. Co. 80 MINI. 46S. In
Columbia & p. S. II. Go. rs. Hdrth0rns,
IA Z. S. POP, the Supreme Court
of the United States, by Mr.. JUS
tice Gray, citing cases decided by the
Supreme Courts of nine Of the States
said " 1t is now we'll settled, upon
much consideration, by the decisions
of the highest courts of most of the
States in which the question has
arisen, that the evidence is incom-
petent. because the taking of such
precautions against the future is not
to be construed as an admission Of
responsibility for the past, has no
legitimate tendency to prove that the
defendant has been negligent before
the accident happened, and is calcu-
lated to distract the minds of the
jury from the real issue, and to create
a prejudice against the defendant"
The instruction also was properly
refused. 1t raises the question
whether an acceptance of bill of
lading by a shipper is evidence OF
his assent to its terms respecting the
exemption of the carrier from liza
bility for losses not due to his negli-
gence. Or, must an express assent
be shown : There are two classes of
cases which should be distinguished.
One class holds that a common car
rier cannot exempt himself from liza
bility by a general notice, even
though the notice is brought to the
knowledge of the shipper. The other
class holds that a common carrier
may be exempted from liability by
special contract between the parties.
If a common carrier could exempt
himself from liability by notice, this
would always be done and the law
which imposes upon him the duty of
receiving goods and transporting
them as insurer would be rendered
nugatory. But there is no valid ob
lection to allowing shipper, if he so
chooses, to waive his right TO hold
the carrier to the full obligations i'm
posed on him by law, and by express
contract to exempt him from liability
from losses not due to his negligence.
All of the cases cited by plaintiff g
counsel belong to the first class, hold
ing that mere notice is not sufficient.
In some cases the notice was pub
lished in newspapers, in others 1t
was posted in the carriers offices, in
others still it was printed upon the
back of the bill of lading, but in no
case was the exemption specified
in the body of the bill of lading, as
part of the contract. Where the
carrier relies upon an exemption con
tanned in general notice it is incum-
bent upon him to show not only that
the notice was brought to the knowl
edge OF the shipper, but that the
shipper expressly assented to it; in
other words, to prove that there was
something more than mere notice,
that is, a contract. On the other
hand, by the great weight of author
ity it is settled that where the exemp-
ton is inserted in the body of the
bill of lading in way not calculated
to deceive, the mere acceptance of the
bill by the shipper is, in the absence
of fraud, imposition or mistake, evil
dence of his assent to its terms. The
reason is that the bill of lading is a
contract as we'll as receipt, and
person who accepts contract,
though signed b. the other party
alone, is presumed to have acquainted
himself with its contents and to have
assented to its terms.
The case chiefly relied upon by the
plaintiff is Railroad Co. rs. Nanutdc-
turing Co., Is Wall, 31S, In which the
Supreme Court of the United States
held that the acceptance of receipt
by consignor without dissent was
not sufficient evidence of e contract
TO exempt the carrier from liability,
the exemption clause being merely
an unsigned general notice printed
on the back of the receipt. But the
ground of the decision was that the
exemption clause was a mere notice
and no part of the contract contained
in the bill of lading. In later case,
Bank Of Kentucky as. adams Erp. Co.,
81 U. S., ia, in which the exemption
clause was inserted in the body of
The bill of ladipp. the same court took