Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-21

Supreme Court OF North Carolina.
March Il. 1899.
A SHIPPER OF LIVE STOCK SIGN
ING a BILL OF LADING EXCEPT
ING. DAMAGES NOT RESULTING
FROM a RAILROAD COMPANY
NEGLIGENCE. DOES NOT HAVE
THE BURDEN or PROVING THAT
THE LOSS OCCURRED FROM
SUCH NEGLIGENCE, IL HE HAD
NO MEANS OF ASCERTAINING
HOW THE LOSS OCCURRED.
IN SUCH CASE THE COURT
SHOULD CHARGE THAT THE
BURDEN WAS ON THE COMPANY
TO SHOW THE LOSS WAS WITH
IN THE EXCEPTION IN THE ELL
! OF LADlNG.
+ The facts arc shown in the opinion of
! the court
The cour. says:
i We cannot assent to the proposition
! that in cases of limited liability the
II burden of proof rests upon the plain
Z tiff 20 show primarily the negligence of
a the defendant. In the case before us
: the plaintif brought suit for the value
e of mule which was shipped to him
from Nashville, Tenn. In a car with
yother horses and mules. When the car
preached New Bern the mule was miss
ing The plaintiff inns no means of
= lSnowng what became of it. excent in
Afornetion furnished by the defendant,
q who says that it died en- route This
q may be true. and we presume it is, from
~ the testimony for the defendant; but it
" has neither been admitted by the plain
tiff nor found II fact by the jury.
Il The defendant says the shipper signed
,!A bill Of lading releasing the defendant
! from all risk of loss or damage not re-
{ eulting from the negligence of its
agents. The safe carriage and delivery
are the essential objects of the con
tract. ami ii is the duty of every party
To n contract 10 comply with his agree
ment or to show such facts as will cX-
cusc his non performance. This is es-
pecally so where the contract is made
in the performance of n public duty. 1t
is the duty of common carrier ire
SpectiVe of contract. but subject to
reasonable regulations. to accept. safe
ly carry. and deliver all goods entrusted
10 it. If the goods are lost. ii must
show what became of them; and If they
are damaged it must prove affirmative
~ that they were damaged in some way
that would relieve it from responsible
ty. The plaintiff has n prma facie case
when he shows the receipt of goods by
the carrier, and their non delivery, or
delivery in n damaged condition. If the
defendant pleads exemption by virtue
of a special contract it must prove the
contract. and show that the loss or
damage comes within some one Of the
exceptions.
There is some conflict among the
authorities as TO the burden of proof
IN such cases: but the prevailing rule.
where the owner or his agent does not
go with the stock. is that when the an
,maIs are shown TO have been delivered
10 me carrier in good condition. and 10
nave been lost or injured on the way
lne burden OF proof then rests unon
Inc carrier to show that the loss or
injury was not caused by its own neg
iiSence This rule strongly commends
itself 10 our better Judgment, and re-
cciVes our approval, especially i'm view
OF the universal acceptance OF the prln-
cipie that where a particular fact. nee
cessary TO be proved rests Deculiarlv
within the knowledge of a party, upon
him rests the burden of proof.
1t is contended for the defendant that
1T is exempted by this contract from
all loss or damage not arising from
It's own negligence. and that therefore
II cannot be required to prove the loss
within the excepted classes without re-
curing ii in effect to prove its own
want OF negligence. Even so. If. stand
' inG with the burden of proof upon n
.jst GLAZING total exemption, it must
snow every fact necessary to prove
that exemption. 1t Is not placed In any
aik--x L. ~