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

OF the shippers assent TO provision
contained in the body OF the bill exemp-
ing the carrier from liability for losses by
fire not due 10 its negligence.
A consignor "prima facie' has authority to
bind the cOnsignee by special contract
exempting the carrier from liability for
losses by fire not due TO ITS negligence.
OPINION OF THE COURT BY FREAR, J.
This is an action on the case for
non delivery of goods shipped at
Honolulu on steamer belonging to
the defendant, common carrier, to
be delivered to the plaintiff at Paia,
Maui. The goods were destroyed by
fire upon the night of their arrival at
Kahului, the terminus of the sea
route, while in defendants ware
house and awaiting forwarding by
rail to Paia the next day. The bill of
lading is in substantially the same
form as that set forth in the case Of
E. o. Hall & Son against the same
defendant, but the trial proceeded on
the theory that the exemption of the
defendant from liability for losses by
fire extended TO inland as well as
the October Term, 1892, of the Su-
preme Court, before Dole, j., and a
Jury, and resulted In verdict for the
defendant The defense was that the
fire was accidental and that the de-
fendant was by special contract ex-
empted from liability Tor losses by
fire not due to its negligence. The
plaintiff contended that the fire was
due to defendants negligence, and
also that there was no special con-
tract exempting it from its common
law liability as insurer. In order to
prove defendants negligence, the
plaintiff, after showing that the ware
house was an old wooden building,
that the doors of the front and rear
entrances were locked on the inside,
that there was no inside Waterman
and no notices against smoking,
offered in evidence that since the fire
the defendant had erected a fire
proof building in place of the one
that was burned, that it had regu-
larly forwarded the freight from Ka-
hului to Paia on the day it was
landed at Kahului, that the new
warehouse contained notices against
smoking. and that whenever goods
were kept in it overnight watch
man was kept there. On the question
of defendants exemption from liza
bility by special contract, the plain
tiff requested the presiding Justice
to instruct the jury that defendants
limitation of its liability could only
be made by contract with the plain
tiff. The mere acceptance by con-
signor OF a receipt containing notice
of exemption from loss by fire is not
of itself evidence of such contract"
The presiding Justice refused to ad
NIT the evidence or give the instruc-
ton, and the case now comes to us
upon exceptions to these refusals.
The evidence was clearly mad
INVISIBLE, both on principle and
authority. The ground usually as
signed for the admissibility of such
evidence is that the making of
changes after an accident is evidence
of an admission of negligence in not
having made them before the acct
dent. But this by no means follows.
The subsequent changes may have
been made because the accident fur
nished an opportunity which did not
exist before to make the changes, or
for reasons which arose after the &C
cident, and which were not even
suggested by it, or for reasons which
were disclosed by the accident but
which could not by reasonable dill
gence have been ascertained before
it, or because of a laudable desire to
take extreme precautions afterwards,
although all the care which the law
required may have been taken at the
time of and prior to the accident. In
this particular case, for instance, it
may not have been negligence to
have continued the use of a wooden
warehouse built some years ago
under circumstances which made it
proper to erect such building. A
person is not obliged to pull down
an expensive building and erect an
other whenever he can erect better
one. And yet if the old one is des-
troyed, due care may require the
erection of new building of very
different kind on account of the
changed circumstances. Negligence
IS failure to exercise due care under
the circumstances. What amounts
to negligence under one set of cir
cumstances cannot be proved by
showing what amounts to due care
under another set of circumstances,
much less by showing what is done
under the second set of circumstances,
for what is then done may be more
than due care calls for. The defend
ant may have been entirely free from
negligence both at the time of the
accident and at the time of the
subsequent changes, and yet very
much greater precautions may have !
been necessary, or may have been |
taken even if not necessary, in the |
latter case than in the former, be- |
cause of the different circumstances.
1t IS not enough to say that the de-
PENDANT may show in rebuttal that |
the cirnrmstonnan rornn;r, 4bo -n,no