#### SMITH & MELTON v. the NORTH CAROLINA R. R. COMPANY.

Although a common carrier cannot, by a general notice to such effect, free itself from all liability for property by it transported; yet by notice brought to the knowledge of the owner, it may- reasonably qualify its liability; and, by a special contract with him, it may relieve ilself from its peculiar liability as common carrier, and in such case it will remain liable far want of ordinary care, i. e.,for negligence.

Where a special contract exists, the burden of proof in regard to negligence, is upon the plaintiff.

Where the facts are agreed upon, or otherwise appear, the question of negligence is one for the court; where such facts are in dispute, it is proper for the court to explain the rule as to negligence, upon any particular hypothesis as to the facts, and leave the application to the jury.

*236Where a railroad company, being unprovided with the means of arresting sparks (“spark-arresters”), gave notice that it would transport cotton at half rales, in case it were relieved from risk as to fire, and thereupon an agent of the owner, (who besides, had a special understanding with the company to the same effect, as regards fire risk,) shipped cotton upon the road at half rates: Held, that bare proof of destruction by fire whilst being transported by the company, would not entitle the owner to recover damages for such loss.

Assumpsit, tried before Logan, J., at January Special Term 1870 of Mboklerburg Court.

The cause of action was, the loss by fire of nineteen bales of cotton belonging to the plaintiffs, whilst being transported by the defendant in 1866.

Upon the trial it was shown that the engines used by the defendant were not prepared for transporting cotton, not being furnished with the “ spark-arresters” which are in use to prevent fire; that the company had a regulation, at the time of, and for nine months before, the fire in question, by which it engaged to transport cotton at half the usual rates of freight, upon consideration that the owner would relieve it from risks on account of fire.; and that the agent, who contracted for the owner to ship that cotton (as he had some 2,000 other bales, since the summer of 1865), had a special understanding with the company at the time of shipping, that it should not be hable for such risks; also, that half rates were paid upon it. It was also shown that the cotton was destroyed by fire, whilst being transported by the company, near Charlotte, from which point it had been shipped.

No further report of the facts is necessary for the understanding of the Opinion.

Both parties asked for certain instructions, and the court declined to give them.

Among those asked by the defendant, was this: That, upon the evidence, there was no negligence upon the part of the defendants.

Among the instructions given by his Honor, was this: *237That it devolved on the defendant to show ordinary care, if the.fact was found that the damage was occasioned by its act.

Verdict for the plaintiff, &c., Judgment and Appeal.

Wilson for the appellant.

1. Public carriers may limit their peculiar liability, Pars. Cont, 1, 703 and n. d. Story Bailm. § 549, Pierce, B. B.’s 420.

2. If so limited, they are not responsible for want of ordinary care, hut only for gross negligence, Story Bailm. § 570 &c., 2 Green. Ev. ^ 218.

3. The burden of proof in regard to care, was upon the plaintiff. Story Bailm. 573 &c. Angelí, Carriers, § 61 n. 5, ^ 276, 2'Green. Ev.' § S'.

Dowd, contra,

cited Glenn v. R. R. Go., 63 N. C. 510; Ellis v. JR. JR. Go., 2 Ire. 138; Baclchouse v. Sneed, 1 Mur] 173; JHJarrell v. Owen, 1 D. & B. 273; Boner v. Merchant’s &g., Co., 1 Jon. 211; Scott r.,R. R. Go., 4 Jon. 432; Woodard v. JHJancoclc, 7 Jon. 384; Aver a v. Sexton, 13 Ire. 247 ; JHJeathcoclc v. Pennington, 11 Ire. 640; Pyles v. JHolmies, Id. 16; New Jersey Na/v. Go. v. Merchants Panic, 6 How. 344; Platt v JHihbard, 7 Coni 500, Bedf. B. E.’s 272, Angelí Carr. § 47 and § 45, Pars. Cont. Í, 711, 2 Green. Ev. 133; Chaffin v. Lawrence^ 5 Jon. 179.

Beade, J.

The questions involved in this case are of such general interest, and so frequently arise, and it is so important that there should he uniformity in the decisions upon these questions in States traversed, as are those of this country, by systems of railroads extending through many or all of these States — that .we have carefully examined the authorities. - Starting with the well *238known rule that common carriers are liable for all losses, ■except sucb as result from tbe act of God or tbe public enemy, we find tbe following corollaries or variations thereof web estabbsbed:

1. They cannot' by general notice, free themselves from liability; as for example, by a general notice of “All baggage at o.wner’s risk.” The owner may disregard sucb notice; and tbe baggage, notwithstanding tbe notice, will be at tbe risk of tbe carrier. But they may, by notice brought to tbe knowledge of the owner, reasonably qualify their liability — as, if tbe notice be, that they will not be ba-ble for glass in a box, or for articles of unusual value, unless informed of tbe facts.

2. They may, by special contract, be relieved from their peculiar liabibty as common carriers; as by that in tbe case before us, That they wbl not be liable for loss from fire.

3. When they are relieved as above, by special contract, they are stib bound to ordinary care, notwithstanding tbe .special contract.

4. When there is sucb special contract, tbe burden of proving the want of ordinary care, or what is tbe same thing, of proving negligence, is upon tbe owner.

5. When tbe facts are agreed upon, or otherwise appear, what is ordinary care, is a question for tbe court. When tbe facts are in dispute, tbe proper course for tbe Judge is, to explain what would be ordinary care under certain hypotheses as to facts, and leave tbe jury to apply tbe law to tbe facts as they find may them.

In tbe case before us, it appears that tbe defendant was not prepared to transport cotton' with safety, as against fire, not being provided with spark arresters, to guard against this danger. Hence tbe stipulation for a fire release was taken. Tbe plaintiff must show other evidence of a want of ordinary care, to render tbe defendant bable for tbe cotton in question.

Tbe learning upon this interesting subject, is web digested *239in 1 Pars. Cont., 1, 704, N. J. Steam Nav. Co. v. Merchant's Bank, 6 Howard, 344.

There is error.

Pee Oueiam. Venire de novo.