#### T. J. MITCHELL v. CAROLINA CENTRAL RAILROAD CO.

(Decided March 21, 1899).

Common Carrier — Limited Liability — Burden of Proof— Negligence — Connecting Lines.

1. Common carriers, while they may limit their common law liability by special contract, reasonable in its essential features and not contrary to public policy, can not exempt themselves from the results of their own negligence.

2. In cases of limited liability, proof of shipment and loss or injury makes a prima facie case for the shipper, and then the burden is upon the carrier to show that the circumstances of the loss bring it within the excepted causes, and when this is shown, the burden still rests upon the carrier of showing that the loss or injury was not due to its own negligence.

3. It is a principle of law, when a particular fact necessary to be proved rests peculiarly within the knowledge of one of the parties, upon him rests the burden of proof.

4. Among connecting lines of common carriers, the one in whose hands goods are found damaged is presumed to have caused the damage, and the burden is upon it to rebut the presumption.

Civil AotioN to recover damages for injury to live stock, transported over defendant’s road, tried before Norwood, J., at Eall Term, 1898, of CbavbN Superior Court.

Tbe animals were transported by connecting lines from Nashville, Tenn., to New Bern, N. C., under a bill of lad*237ing lirpifriug' tbe common-law liability of common carriers, in consideration of reduced rates. In tbe transit one of tbe animals, a mule, died on tbe cattle-car of tbe defendant.

TTis Honor charged tbe jury tbat, notwithstanding tbe contract, tbe defendant was liable for tbe exercise of proper care in handling and transporting tbe stock over its line; tbat tbe burden was upon tbe plaintiff to show want of ordinary and proper care, and tbat upon tbe whole evidence there was no evidence that tbe defendant was negligent in handling and transporting this stock. Tbe plaintiff excepted to tbat portion of tbe charge relating to tbe burden of proof, submitted to judgment of nonsuit, and appealed.

Messrs. Simmons, Pou & Ward, for appellee.

No counsel contra.

Douglas, J., delivers tbe opinion.

FaiRoloth, O. J., delivers dissenting opinion.

Douglas, J.

We can not assent to tbe proposition tbat in cases of limited liability tbe burden of proof rests upon tbe plaintiff to show primarily the negligence of tbe defendant. In the case before us the plaintiff brought suit for the value of a mule, which was shipped to him from Nashville, Tennessee, in a car with other horses and mules. When tbe ear reached New Bern tbe mule was missing. Tbe plaintiff has no means of knowing what became of it, except information furnished by the defendant, who says tbat it died en route. This may be true, and we presume it is, from the testimony for the defendant, but it has neither been admitted by the plaintiff nor found as a fact by tbe jury.

Un contradicted testimony is never equivalent to an admitted fact, as tbe jury may not believe it, and this is especially so where the alleged facts are peculiarly within *238the knowledge of the witness. Here, the plaintiff simply knew that the defendant received his mnle under a contract to deliver it to him at New Bern, which it has failed to do. He simply asks for his mule or its value, neither of which does he obtain. The defendant says that the shippers, implied agents of the plaintiff, signed a bill of lading releasing the defendant from all risk of loss or damage from any cause whatever not resulting from the negligence of its agents, and that the burden rests upon the plaintiff of proving affirmatively not only the shipment and the loss, but that the loss occurred through the negligence of the defendant, when, in fact, he neither has, nor could have, any knowledge as to how it occurred. It is true the defendant introduced testimony tending to show the death of the mule from natural causes, but it did so purely as a matter of supererogation, with the burden of proving nothing. If 'its contentions are correct, it need not have said a word. It made no difference how the loss occurred, provided the plaintiff could not prove that it occurred through its negligence. The entire carload of stock might have been safely stolen through the gross negligence or actual connivance of its agents, if done without the knowledge of the plaintiff, or of any one, by whom he might prove it. If this is the law, what protection is there for the shipper? If a resident of Raleigh ships freight to New York under a so-called “released” bill of lading, he can not be expected to go with it and watch it day and night; and yet, if he did not, how could he know the facts connected with its possible loss ? The carrier could stand upontheword “released,” and without one word of explanation as to the non-delivery of the freight, simply say to the plaintiff, “prove your case.”

It is too well settled to need any citation of authority that common carriers can not exempt themselves by contract from the results of their own negligence. This principle is recog*239nized in the bill of lading before ns, and yet we are asked to establish a rule of evidence that will destroy its vital principle and subvert its beneficial purposes. It makes no difference to the plaintiff whether you deny his right or simply deprive him of the only remedy by which it can be obtained, and it is equally beneficial to the defendant whether you relieve it from all liability or only place it beyond the possibility of proof.

It seems to us that the error lies in a misapprehension of the true nature of the bill of lading. It is not an agreement primarily intended to release the common-law liability of the carrier, but as said in Pollard v. Vinton, 105 U. S., 7: “It is at once a receipt and-a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel; in the latter, it is a contract to carry safely and deliver." The safe carriage and delivery are the essential objects of the contract, and it is the duty of every party to a contract to comply with his agreement to show such facts as will excuse his non-performance. This is especially so where the contract is made in the performance of a public duty.

It is the duty of a common carrier, irrespective of contract, but subject to reasonable regulations, to accept, safely carry and deliver all goods entrusted to it. If the goods are lost, it must show what became of them, and if they are damaged, it must prove affirmatively that they were damaged in some way that would relieve it from responsibility. The plaintiff has a prima facie case when he shows the receipt of goods by the carrier, and their non-delivery or delivery in a damaged condition. Any further defence is in the nature of confession and avoidance. 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 *240one of tbe exceptions. It must appear to tbe Court as matter of law that tbe contract is reasonable in all of its essential features, and tbat tbe exemptions are not contrary to public policy. All sucb exemptions, being in derogation of common law, should be strictly construed.

So far, we think tbe principles herein laid down are properly deducible from all tbe authorities; but we now come to an irreconcilable conflict of decisions as to tbe subsequent burden of proof. Tbe Courts of Alabama, Georgia, Iowa, Minnesota, Mississippi, Ohio, South Carolina, Texas, Tennessee and West Virginia, and perhaps one or two others, bold tbat tbe burden still rests upon tbe carrier of showing tbat tbe loss was not due to its own negligence. This view is clearly laid down in an able opinion by Judge Cooper, in Chicago, etc., R. Co. v. Moss, 60 Miss., 1003, where be says: “To us it also seems that public policy forbids the further relaxation of tbe principles of tbe common law governing common carriers. It is no uncommon thing in this age to see under one management a line of railroads extending from tbe lakes of tbe North to tbe Gulf of Mexico, or from tbe Atlantic to tbe Pacific Ocean. To bold tbat a shipper in New York or Chicago shall be required to establish tbe negligence of tbe carrier by proof of the circumstances of a fire in California or New Orleans, would in a great.number of cases result in a verdict for tbe carriej:, even though there was in fact negligence. In a large majority of cases tbe facts rest exclusively in tbe knowledge of tbe employees, whose names and places of residence are unknown to tbe shipper. In many cases tbe witnesses are tbe employees whose negligence has caused tbe loss, and if known to tbe shipper it may be dangerous for him to rest bis case upon their testimony, since tbe natural impulses of mankind would sway them in narrating tbe circumstances to palliate their fault by stating *241the occurrence in the most favorable light to themselves. All the anthorites hold that it devolves upon the carrier to show the loss to have occurred by the excepted cause. In doing this it will add but little to his burden to show all the attending circumstances; and that the burden rests upon him to do so and disprove his own negligence we think arises from the terms of the contract, from the character of his occupation and from the rule governing the production of evidence, which requires the facts to be proved by that party in whose knowledge they peculiarly lie.”

This opinion is especially interesting, because it tersely reviews the authorities on both sides of the question, which in the single point in the case. Bishop, in his Law of Evidence (Edition 14), section 219, adopts the same view in the following words: “And-if the acceptance was special, the burden of proof is still on the carrier to show, not only that 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

It would seem from the recent work of Elliott on Railroads that this has now become the settled rule of a majority of the States, as the authors say in section 1548, on page 2403: “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 animals are shown -to have been delivered to the carrier in good condition, and to have been lost or injured on the way, the burden of proof then rests upon the carrier to show that the loss or injury was not caused by its own negligence.”.

This rule strongly commends itself to our better judgment and receives our approval, especially in view of the universal acceptance of the principle that where a particular fact, nec*242essary to be proved, rests peculiarly within the knowledge of a party, upon him rests the burden of proof, 5 Am. & Eng. Enc. of Law, 2nd Ed., p. 41; Best on Evidence, section 274; 1 Greenleaf Ev., section 79; Starkie on Evidence, section 589; Rice on Evidence, section 77; Railroad Co. v. U. S., 139 U. S., 560, 567; State v. McDuffie,107 N. C., 885, 888; Govan v. Cushing, 111 N. C., 458, 461.

On the other hand, the Federal Courts, with those of a large number of the States, hold that under a bill of lading, containing a contract of limited liability, the burden rests upon the plaintiff of proving that the loss or damage was caused by the negligence of the defendant carrier. But we think that an examination of the cases will show that the true principle of the rule iii those jurisdictions is that the burden of proving the negligence of the carrier does not primarily rest upon the plaintiff, but is shifted to him upon the carrier proving that the loss fell within one of the excepted causes. That the carrier must prove that the injury complained of came within one of the special exemptions created by law or contract, is admitted by all the authorities.

By the Act of 1851, Congress relieved the owners of seagoing vessels from all responsibility for loss by fire unless caused by their own design or neglect, and from responsibility for loss of money and other valuables named, unless notified of their character and value, with certain other limitations of liability not arising from their own negligence. These limitations are substantially brought forward in Chapter 6, Title 48, of the Revised Statutes, subsequently amended by the Act of February 13, 1893. Several of the States enacted similar legislation, and the same general principles are held to apply to common carriers on land. In addition to this it became the custom of ship owners to protect themselves by contract from risks arising from the perils of navigation. *243Within reasonable restrictions these contractnral limitations have been held to be valid; and it is upon these two classes of exemptions that the decisions generally rest. Those referring to the proper or inherent vice of animals do not appear to have any bearing upon the case at bar in its present status.

It must be admitted that among the different States adhering to the same general rule there is much diversity of application as well as uncertainty of definition. This may come in some degree from the unfortunate tendency of some othewise able Judges to formulate general principles upon special eases, unmindful of the limitations or modifications that may necessarily arise from the varying facts of other cases. Some of these definitions, like our old State grants, where each grantee furnished his own survey, cover much more than was originally intended, and lap over upon other essential principles. Those unlucky rights which lie within the lappage, are necessarily of uncertain tenure. Of course perfection of definition is impossible to human foresight; and as human motives and resulting action do not run in parallel lines, there is frequently an ultimate point of conflict between essential principles themselves. There the superior principles must prevail, such, for instance, as depend upon public policy of natural right. The great principle of legal construction was never better stated than by Lord Mansfield in Rex v. Bembridge, 3 Doug., 332, where he says: “The law does not consist of particular cases, but of general principles, which are illustrated and explained by these cases.”

It is impracticable to review any considerable number of cases bearing upon that at bar, but a few citations from the Supreme Court of the United States, which sustains the rule most favorable to the carrier, will sufficiently illustrate this view:

*244In the Mohler v. Insurance Co., 21 Wall., 280, 233, tbe Court says: “ It is insisted that tbe loss occurred through a peril of navigation, which was one of the exceptions contained in the bill of landing, and that, therefore, the carrier was excused from a delivery of the wheat. The burden of proof lies upon the carrier, and nothing short of clear proof, leaving no reasonable doubt for controversy, should be permitted to discharge him from duties which the law has annexed to his employment.”

In Clark v. Barnwell, 12 Howard, 272, the Court held, quoting from the syllabi, that: “Where goods are shipped, and the usual bill of lading given, promising to ‘deliver them in good order, the dangers of the sea excepted/ and they are found to be damaged, the onus probandi is upon the owners of the vessel, to show that the injury was occasioned by one of the excepted causes.”

But though the injury may have been occasioned by one of the excepted causes, yet the owners of the vessel are responsible if the injury might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods. But the onus pro-bandi then becomes shifted upon the shipper to show the negligence.”

The same rule is sustained in Rich v. Lambert, 12 Howard, 347; the Majara v. Cordes, 21 Howard, 7; the Majestic, 166 U. S., 375. In Trans. Co. v. Downer, 11 Wall., 124, the Court says: “On the trial the plaintiff made out a prima facie case by producing the bill of lading, showing the receipt of the coffee by the company at New York, and the contract for its transportation to Chicago, and by proving the arrival of the coffee. . . .in a ruined condition, and the consequent damages sustained. The company met this prima facie case by showing that the loss was occasioned by one of the dangers of lake navigation.”

*245In the Edwin I. Morrison, 153 U. S., 199, tbe Court says, on page 212: “In any aspect, tbe real point in controversy is, did tbe respondents so far sustain the, burden of proof which was upon them” etc. It further beld tbat even where tbe loss was caused by the dangers of tbe sea, the burden was still upon tbe owners of tbe vessel to show tbat it was seaworthy. In all these cases of limited liability tbe rule is invariably recognized, tbat proof of shipment and injury makes a prima facie case for tbe plaintiff, and tbat then tbe burden is always upon tbe carrier to show tbat tbe circumstances of tbe loss bring it within tbe excepted causes. When tbe carrier has shown this by a preponderance of testimony, then, and then only, does tbe burden shift to tbe shipper of showing tbat tbe loss, even if within tbe excepted classes, might have been avoided by diligence and care upon tbe part of tbe carrier.

Therefore, under tbe most stringent rule, tbe plaintiff in tbe case at bar is entitled to a new trial, as tbe defendant did not prove to tbe satisfaction of tbe jury,' by whom alone tbe fact could be found, tbat tbe circumstances of tbe loss brought it within tbe exception. Tbe mere proof or admission of tbe terms of tbe bill of lading containing tbe stipulated exceptions is no proof tbat tbe loss comes within those exceptions. Tbe necessary issues do not appear to have been submitted. Ordinarily parties can not complain of tbe issues in tbe absence of a special tender and exception; but this Court has beld, in Tucker v. Satterthwaite, 120 N. C., 118, tbat tbe Court below must of its own motion, with or without suggestion, submit such issues as are necessary to settle tbe material controversies arising on tbe pleadings.

If tbe issue as to tbe negligence of tbe defendant was intended to raise tbe question, whether tbe loss came within tbe exception, then tbe burden of proof of tbat issue rested *246upon, tbe defendant, in order to rebut tbe prima facie case already made out by tbe plaintiff. Tbe defendant can not be ■permitted, by tbe mere form of an issue or a “broadside” stipulation of exemption, to change tbe rules of evidence and practically destroy essential principles firmly resting upon public policy. At .that stage of tbe proceedings tbe burden was admittedly upon tbe defendant. Has it been ever lifted or shifted ? If so, we can not see when or where.

It is contended for tbe defendant that it is exempted by this contract from all loss or damage not arising from its •own negligence, and that, therefore, it can not be required to prove tbe loss within tbe excepted classes without requir-it, in effect, to prove its own want of negligence. Even so. If, standing with tbe burden of proof upon it, it claims a total exemption, it must show every fact necessary to prove that exemption. It is not placed in any better condition than tbe -ordinary defendant merely by tbe unreasonable extent of its •stipulations.

Tbe bill of lading, covering five printed pages, is full of tbe most stringent stipnlations, all in favor of tbe carrier, among which is tbe broadside exemption from all risk “of loss or damage from any cause or thing not resulting from tbe negligence of tbe agents of said party of tbe first part.”^ It then provides that “in case tbe said party of tbe first part (tbe carrier) shall furnish laborers to assist in loading and unloading said stock, they shall be subject to tbe orders, and deemed employees, of tbe said party of tbe second part while so assisting.” It gravely winds np by requiring tbe shipper, who has shipped nothing but horses and mules, to sign a written agreement that turkeys are reasonably worth only 12-J cents a piece in Nashville. Tbe “reasonableness” .of such a bill of lading may well be questioned.

These extraordinary stipulations strongly recall tbe per-*247tinency of Mr. Justice Bradley’s language in delivering tbe opinion of tbe Court, in Railroad v. Lockwood, 17 Wallace, 357, where be says, on page 378 : “It is a favorite argument in tbe cases wbicb favor tbe extension of tbe carrier’s right to contract for exemption from liability, that men must be permitted to make their own agreements, and that it is no concern of tbe public on what terms an individual chooses to have his goods carried. . . .Is it true that tbe public interest is not affected by individual contracts of tbe kind referred to? Is not the whole business community affected by bolding such contracts valid? If held valid, tbe advantageous position of tbe companies exercising tbe business of common carriers is such that it places it in their power to change tbe law of common carriers in effect, by introducing new rules of obligation. Tbe carrier and bis customers do not stand on a footing of equality. Tbe latter is only one individual of a million. He can not afford to biggie or stand out and seek redress in tbe Courts. His business will not admit such a course. He prefers rather to accept any bill of lading, or sign any paper tbe carrier presents, often, indeed, without knowing what tbe one or tbe other contains. In most cases be has no alternative but to do this or abandon bis business. In tbe present case, for example, tbe freight agent of tbe company testified that though they made forty or fifty contracts every week like that under consideration, and bad carried on tbe business for years, no other arrangement than this was ever made with any drover. And tbe reason is obvious enough — if they did not accept this, they must pay tbe tariff rates.Of course no drover could afford to pay such tariff rates. This fact is adverted to for tbe purpose of illustrating bow completely in tbe power of tbe railroad companies parties are, and bow necessary it is to stand firmly by those principles of law by wbicb tbe public *248interests are protected. If the customer had any real freedom of choice; if he had a reasonable and practical alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do in fact control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish an additional argument, if any were needed, to show that the conditions' imposed by common carriers ought not to be adverse (to say the least) to the dictates of public policy and morality. The status and relative position of the parties render any such conditions void. Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness.”

The action of the Court below seems to have been based on the opinion of this Court in Smith v. Railroad, 64 N. C., 235, which, on careful examination, does not seem to decide the question before us. The general principles were not elaborated, and the opinion was evidently based entirely on the particular facts of the case. There, the exemption claimed was not general, but special, being as to fire only. The contract was proved, and it was shown that the cotton was destroyed by fire. This brought the loss within the ex*249ception. What the Court evidently intended to say was that then the burden of proving negligence rested on the plaintiff. The opinion cites but two authorities, namely, 1 Parson’s Contracts, 1, 704 (perhaps meaning Vol. I, page 704), and Steam Nav. Co. v. Bank, 6 Howard, 344.

In Nav. Co. v. Bank, the question of the burden of the proof of negligence arose only incidentally, but the Court clearly recognized the prior burden of the carrier, on page 383, where it says: The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the Jaw has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, hut should be specific and certain, leaving no room for controversy between the parties.”

For the same reasons, the case of Selby v. Railroad, 113 N. C., 588, does not conflict with the principles now dis-' cussed.

The only case that we can find in our Reports that seems to settle the point now in question, and to settle it apparently in favor of the plaintiff, is M’fg. Co. v. Railway, 121 N. C., 514, where this Court has laid down the rule, without dissent, that “among connecting lines of common carriers, that one in whose hands goods are found damaged is presumed to have caused the damage, and the burden is upon it to rebut the presumption.”

For the reasons given above a new trial should he ordered.

We think that our view of the common law is expressly recognized in Chapter 46 of the Laws of 1897, entitled, “An Act for the Better Protection of the Travelling Public,” which reads as follows:

“Section 1. That all railroad and steamboat companies *250doing business in this State shall be required to handle with care all baggage and freight placed with them for transportation, and they shall be liable in damages for any and all injuries to the baggage or freight of persons from whom they have collected fare or charged freight. While the same is under their control, and upon proof of injury to baggage or freight in' the possession or under the control of any such company, it shall be presumed that the injury was caused by the negligent acts of said company's agents or servants.” While its caption does not fully indicate the scope of the Act, we think the words italicized by us are plain and unequivocal in their meaning and effect.

FaiRCI-Oth, C. J.,

dissenting. The plaintiff shipped live stock from Tennessee to New Bern, N. C., over several railroad lines, including the defendant’s line. One mule was found dead in the car. The plaintiff sues for its value and alleges negligence as the cause of loss of the mule.

The plaintiff had a right to ship his stock over the railroads, as common carriers, by paying the usual charge for transportation or to ship by special contract, and he elected to take the latter course. He, by special contract, for a consideration in reduced rates for transportation, agreed to relieve the carrriers from their liability of common carriers in the transportation, and agreed that their liability should be only that of a private carrier for hire, and he assumed all risk of injury by the animals to each other; or of heat or suffocation or other ill effects of being crowded in the cars, etc. We then have the case of a carrier liable-for want of ordinary carej in other words, for negligence.

The liability of common carriers is harsh, but upon the ground of public policy it is not unjust. After the parties closed the examination, his Honor explained the rights and *251liabilities of carriers and instructed tbe jury that there was no evidence in this case that the defendant was negligent in transporting the stock, to which the plaintiff excepted.

I have carefully read the evidence, and I see no error in the charge of the Court. The mule seems to have died of colic or from some natural cause, which may have been induced and accelerated by the crowded condition of the car. I think the burden of showing negligence on the part of the defendant rested on the plaintiff, and that the special agreement was a valid contract. Smith & Melton v. R. Co., 64 N. C., 235; Selby v. Railroad, 113 N. C., 588.

New trial.