#### H. A. OSBORNE and W. J. FLOWE v. SOUTHERN RAILWAY COMPANY.

(Filed 28 May, 1918.)

1. Carriers of Goods — Live Stock — Negligence — Evidence — Questions for Jury — Trials.

In an action against the carrier for damages for the destruction of a shipment of live stock by fire, a prima facie case is made out when the plaintiff shows the receipt of the cattle for transportation and their nondelivery.

2. Carriers of Goods — Negligence—Sparks — Origin — Circumstantial Evidence.

It may be shown by circumstantial evidence that a spark which caused the plaintiff’s cattle to be destroyed by fire while being transported by the defendant carrier originated from the defendant’s locomotive.

3. Carriers of Goods — Negligence—Bills of Lading — Contracts—Live Stock.

Under the provisions of the “Cummins’ ” Amendment, a common carrier may not stipulate in its bill of lading for exemptions from liability for damages to a live-stock shipment caused by its own negligence.

4. Carriers of Passengers — Live Stock — Attendant—Negligence—Evidence —Questions for Jury — Trials.

A carrier transporting live stock is not held to the same absolute liability to the attendant in the ear, a passenger, as it is to the owner of the cattle, for damages arising from the destruction of the car by fire-; but it is Held, the evidence in this case was sufficient to be submitted to the jury on defendant’s liability to the attendant, in his action.

Appeal by defendant from Lane, J., at January Term, 1918, of Hat-wood.

:This is an action by plaintiff Osborne for tbe destruction by fire of seven bead 'of bigb-grade Guernsey cáttlé, while in transit on defendant’s *595road, and tbe plaintiff Flowe sues fox damages because of injuries sustained in tbe same fire, be being in tbe car witb tbe cattle as a caretaker.

These cattle were shipped in October, 1916, from Canton, N. 0., to ■tbe Ealeigb, N. C., Fair, where they were exhibited, and on return were burned by tbe car taking fire near Lexington, N. .0.

By consent the two actions were consolidated and tried together. From tbe verdict and judgment in favor of both plaintiffs tbe defendant appealed.

Alley & Leatherwood, IS. G. Ward, and J. B. Smathers for plaintiffs.'

Martin, Rollins & Wright for defendant.

OlaeK, C. J.

Tbe defendant states in bis brief that the only question presented is whether there was sufficient testimony of negligence to be presented to tbe jury.

There was evidence that tbe defendant permitted tbe car in which tbe cattle bad been loaded on their return trip to remain on tbe yards in Ealeigb 25 hours, thereby greatly depleting tbe water supply provided for tbe use and protection of tbe cattle and of their caretaker, the plaintiff Flowe, who testified that tbe water was entirely exhausted before be reached Greensboro on tbe night of 22 October; that be bad no opportunity to replenish tbe water supply at Greensboro, and did not know where to get water, nor bow long he would be there; that on leaving Greensboro be laid down and went to sleep opposite tbe door, witb bis bead away from tbe engine; that tbe eastern door of tbe car was closed, and tbe other door about one-third open; that when be woke up tbe fire, presumably from a spark from tbe engine, was burning slightly in tbe straw bedding near bis bead; that be tried to smother tbe flames witb bis jacket, but could not put them out because of tbe draft caused by tbe motion of tbe train, and there was no water in tbe barrel at the time; that when be found it impossible to put out tbe fire, be passed through tbe flames -and swung himself outside tbe car, bolding by tbe top of tbe door while tbe train was going 30 to 40 miles an hour.

There was also evidence that tbe defendant was negligent in placing tbe ear in which these cattle were loaded tbe second car from tbe engine, and in front of a long train of cars, instead of at tbe rear of tbe train. Tbe witness further testified that be bad scattered 3 or 4 bales of straw in tbe car as bedding for tbe cattle and that one of -the doors of tbe car was open about 18 inches; that tbe car as thus loaded was inspected by tbe defendant’s agent at Ealeigb and.again by its conductor at Greensboro, who made no objection, and tbe defendant was thus fixed witb knowledge of the inflammable matter in tbe car¿ and tbe danger of placing tbe car so near tbe engine. He also testified that be filled up tbe *596barrel with water in Raleigb to water the cattle and as protection against fire, but it was exhausted by the long detention at Raleigh, and in the trip to Greensboro. The defendant’s conductor testified that there were 22 cars in the train at the time of the accident and that the car in which the cattle were loaded was the second car from the engine. The Rule Book of the defendant, section 786, in evidence, directs yardmasters and train crews that “éars containing live stock should be-placed in the rear of the train, and immediately ahead of the caboose.”

There was also evidence tending to show that the defendant was negligent in failing to equip its engine on this train in which plaintiff: Osborne’s cattle were burned to death and upon which plaintiff Elowe was injured, with a safe and suitable spark arrester. It is true the engineer, Holt, testified that the spark arrester was in good condition the next day, but this left it a matter of fact for the jury whether it was in good condition on the night of the fire.

As to the plaintiff Osborne, it is the duty of the common carrier, irrespective of contract, to 'safely carry and deliver all goods delivered to it. If the goods are lost or damaged the burden is on -the carrier to prove facts that would relieve it from liability. The plaintiff made out a prima facie case when he showed the receipt of the cattle for transportation and their nondelivery. Mitchell v. R. R., 124 N. C., 239. The origin of the fire may be established by circumstantial evidence, and it was not necessary that any witness should testify that he saw the sparks coming from the engine. -There was no evidence tending to show any other origin, which, besides, was a matter of defense. McMillan v. R. R., 126 N. C., 725; Williams v. R. R., 140 N. C., 623; McRainey v. R. R., 168 N. C., 571.

The bill of lading in this case expressly excepted from the restrictive clauses the liability of the carrier for negligence. Even if this had not been done, the carrier would have none the less been liable for negligence under the “Cummins” amendment, which restored the law that a carrier could not stipulate for exemption from liability for damages occasioned by its own negligence.

"While there is not the same absolute liability for safe carriage of a passenger as there is in regard to the safe transportation of freight, the evidence of negligence as above recited was sufficient to submit the case to the jury in regard to personal injuries sustained by the plaintiff Elowe. In Barnes v. R. R., this Court said, Allen, J.: “Proof that the plaintiff was injured in the manner described while a passenger on the train of the defendant is itself some evidence of negligence. 5 R. C. L., 74; Marable v. R. R., 142 N. C., 557; Gleeson v. R. R., 140 U. S., 445.” This last case is quoted freely in Barnes v. R. R. and is conclusive.

We think that in submitting the case to the jury there was

No error.