Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-16

1RSDAH, MARCH 10, lOll.
the cause Of the loss was within the
terms of the exception but also that
there was on his part no negligence
or want of due care e Green Ey.
Sec. 219.) This rule has the support
of a few authorities" As upholding
the principle thus announced atten-
ton is called to several decisions and
among them to the case Of Grey s
Ex'r. V. Mobile Trade Co., 50 Ala.
3S7, in referring to which the text
writer further remarks: ut and the
rule as stated by Mr.. Greenleaf are
certainly founded upon reason and
public policy. but they lack, as has
been seen, the support Of authority" ."
Lawson Cont. Car. Sec. 25O.
In case of injury to goods the car
riage Of which has been undertaken
pursuant to an express contract
made with the owner limiting liabil-
ity, we believe that as the common
carrier is not a gratuitous baliee the
burden ought to be imposed on him
to disprove negligence, which should
be presumed from the failure to ship
or deliver. This rule would require
the proving of a negative, but as the
agents of the carrier must have a
! better knowledge of the origin and
consequences of the loss than any
other person, he should be required
to show that the damage did not re-
suit from negligence. Any other
rule would subject the shipper to
much expense in attempting to dis
cover the cause of the injury to or
loss of his goods and since this infor-
nation can readily be supplied by the
carrier he ought to be required to
disprove negligence. If the burden
devolved on the shipper he might be
compelled to rely upon the testimony
of servants in the employ of the car
rier whose hope of continual engage
ment might affect their sworn state
ments. For these reasons we think
it was incumbent upon the defendant
to show that the derailing and burn
ing of the baggage car did not result
from negligence.
In actions to recover damages
based on carelessness, the proximate
cause is any act or omission that i'm
mediately produces or fails to pre-
vent the injury, or that which direct
ly puts into operation another
agency or force, or interposes an OBJ
stacle whereby injury is inflicted that
would not have happened except for
tf0 original negligent act or omis-
sion. SA & E. Enc. L., I'D Ed 571;
80 Cyc. 745; Hartvig v. N, P. L. Co.,
19 Or 522; Ahern V. Or. Tel. Co., "a
Or. 276; Robinson V. Taku Fishing
Co., AZ Or 537. When in such an ac-
ton the complaint sets forth the
facts constituting the negligent act
or omission, discloses, in logical Sc
quence, the facts composing the Sec
ondary agency, force or obstacle, il
any, and details the resultant injury
and the damages, the pleading is suf-
ficient In the case at bar the COM
plant does not conform to these re-
quirements, but as the burden OF
proof rested on the defendant a sug-
gestion of negligence in plaintiffs
primary pleading was, in our opinion
adequate for that purpose. The de-
fendant, probably relying on the
weight of authority respecting the
burden of proof, offered no evidence
on the question of negligence.
Objection is made because the court
did not make a finding as to the
special contract alleged in the an
swer and denied by the reply. The
finding that defendant was negligent
in consequence of which PLAINTIFF
trunk and it's contents were de-
stroyed, renders void the attempted
limitation of liability, which conclu-
sion determined the right of recov.
cry, rendering it unnecessary tc
make any findings on such issue
Lewis v First Nat. Bank, 46 Or. 1872;
Freeman v. Trummer, so Or. 2S7;
Naylor v. McColloch, Mayor, "a Or
3O5.
1t follows from these considera.
tions that the judgment should be af
firmed and it is so ordered