83 CARRIERS it is not material to a connecting carrier's liability specified by a connecting carrier ren- a a V. flood washed [a] Thus where a N. Y.-Johnson v. New York Cent. was V. con 204. 33 AmD 54. Tenn.-Louisville, etc., Odil, 96 Tenn. 64, 33 SW 611, 54 Am R. Co. SR 820. But see Missouri, etc., R. Co. v. Leibold, (Tex. Civ. A.) 55 SW 368, 369 (where it was held that a carrier is liable for injuries to a shipment deviated from the route templated by the contract, although the deviation necessity, the court saying: compelled of pellees had contracted for the cattle "Apto be shipped over the line of appellant, and, if they were diverted from the route, appellant would be liable for damages arising from the negligence of the carrier to which it intrusted the cattle. It could shift its responsibility by placing not the cattle in the hands of another carrier, not contemplated in the contract, even if it was compelled to do so by necessity"). to "The duty that may rest on a carrier under normal conditions transport merchandise by a particular. and the most route is restrained and limited by advantageous. the right of the carrier, in case of necessity. to resort reasonable direct to such other available under the existing condiroute as may be tions to carry the freight to its des Consent 89 [§§ 159-161 so rather than depart from the terms of the contract, and await further directions; and this is so even though there is a stipulation in the contract of shipment that every carrier, in case of necessity, may forward the goods by any railroad between the place of shipment and the place of destination." 90 When the shipper is so notified, and he refuses to give further shipping instructions, the carrier may then return the shipment to him at his expense, and, thus being wholly without fault, it avoids all liability to him.91 tination, and if such necessity ex- | etc., 89. 885. care [§ 161] d. Negligence in Not Avoiding or Lessening Loss or Injury—(1) principles already stated,92 it is apparent that, if Statement of Rule. From the carrier might, by reasonable care or foresight, have avoided loss by act of God or by other excepted cause, it will be liable. The duty also rests on it, as far as possible, to avoid or to lessen the damage resulting from such cause, and negliappellant failed to do. gence in not so doing will However, under such circumstances the liability of render it liable.93 ercised reasonable duty of appellant, in the absence of It was the orders from the shipper, to have exthe shipper's interest. vegetables south, over another line to protect rier did not do when it turned these This the carbelonging to its system of railway, to New Orleans, and there selling could have forwarded the same by one them at 82 cents per crate, when it of two other railways from Meridian to Cincinnati, where would have brought the shipper 67% the tomatoes cents per crate.' ville, etc, R. Co. v. Odil, 96 Tenn. (2) And in Louis61, 33 SW 611, 54 AmSR 820, it appeared that a particular connecting line, but, on potatoes to defendant railroad with shipper consigned directions to deliver them at E to a their arrival at E such line refused to receive them, owing to a strike on its road, and defendant, without communicating with the shipper, delivered the potatoes to another line as expeditious as the one selected by the shipper. The strike having spread, the potatoes were stopped in transit over the taken back to one of its stations, substituted line, and sold, no notice of this fact being given to the shipper until several days after the shipment, when he refused to accept the proceeds. It was held that defendant was liable for the loss resulting from the deviation from the selected route, the freight not being of such perishable nature as to necessitate its immediate transhipment at E without notice to the shipper. Drake v. Nashville, etc., R. Co., 125 (3) So in Tenn. 627, 148 SW 214, it was held that the fact that a connecting carrier named in a bill of lading refuses to transport the property over the route specified will not justify an initial carrier in making a deviation. It is the initial carrier's duty to receive the freight back and to call on the shipper for further instructions, in the absence of which the freight should be returned. In In re Peterson, 21 Fed. 885, it (4) was held that, where, while goods received by the first carrier are in transit, the connecting line notifies it that it cannot receive the goods and transport them to their destinafrom liability for damages caused by tion because of a block in freight. this will not relieve the first carrier the delay, where it fails to notify the shipper and to give him an opportunity to dispose of the property or to take measures for its preservation. U. S.-In re Peterson, 21 Fed. Co. v. V. But see Regan v. Grand Trunk R. 90. Fisher v. Boston. etc., R. Co., 99 Me. 338, 59 A 532, 105 AmSR 283, 68 LRA 390. 91. Drake 93 U. S.-Memphis, etc., R. Co. v. For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. the carrier is not that of an insurer, and it is bound to use only reasonable care to avoid loss or injury. 94 [162] (2) Application of Foregoing Principles. Floods. The carrier cannot relieve itself from liability for loss or injury caused by an unprecedented flood, if, by the reasonable exercise of diligence, it could have anticipated that such loss or injury would occur, or if it fails to exercise Reeves, 10 Wall. 176, 19 L. ed. 909; Ala. Smith v. Western R. Co., 91 Ga. Savannah, etc., R. Co. v. Commercial Guano Co., 103 Ga. 590, 30 SE 555; Richmond, etc., R. Co. White, 88 Ga. 805, 15 SE 802. V. La.-National Rice Milling Co. v. New Orleans, etc., R. Co., 132 La. 615, 61 S 708, AnnCas1914D 1099. Md.-Baltimore, etc., R. Co. V. Keedy, 75 Md. 320, 23 A 643. Minn.-Jones v. Minneapolis, etc., R. Co., 91 Minn. 229, 97 NW 893, 103 AmSR 507. Mo.-Bird v. Cromwell, 1 Mo. 81, 13 AmD 470 and note. Mont.-Wahle V. Great Northern R. Co., 41 Mont. 326, 109 P 713; Nelson V. Great Northern R. Co., 28 Mont. 297, 72 P 642. Nebr.-Sunderland Bros. Co. v. Chicago, etc., R. Co., 89 Nebr. 660, 131 NW 1047; Wabash R. Co. v. Sharpe, 76 Nebr. 424, 107 NW 758, 124 AmSR 823; Black v. Chicago, etc., R. Co., 30 Nebr. 197, 46 NW 428; Chicago, etc., R. Co. v. Manning, 23 Nebr. 552, 37 NW 462. N. Y.-Wing v. New York, etc., R. Co., 1 Hilt. 235. Pa.-Roach v. Kelly, 194 Pa. 24, 44 A 1090, 75 AmSR 685; Chouteaux v. Leech, 18 Pa. 224, 57 AmD 602; Cunningham v. Pennsylvania R. Co., 50 Pa. Super. 609; Stephenson Pennsylvania R. Co., 20 Pa. Super. 157. V. S. C.-Ewart v. Street, 18 S. C. L. 157, 23 AmD 131; Charleston, etc., Steam Boat Co. v. Bason, 16 S. C. L. 262. R. Tenn.-Dillard Louisville V. Co., 2 Lea 99; Lamont v. Nashville R. Co., 9 Heisk. 59; Nashville, etc., R. Co. v. David, 6 Heisk. 261, 19 AmR 594; Craig v. Childress, Peck 270, 14 AmD 751. Tex.-Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 SW 722; Atchison R. Co. v. Madden, (Civ. A.) 103 SW 1193; Missouri, etc., R. Co. v. Davidson, 25 Tex. Civ. A. 134, 60 SW 278; St. Louis, etc., R. Co. v. Bland, (Civ. A.) 34 SW 675. Vt.-Day v. Ridley, 16 Vt. 48, 42 AmD 489. W. Va.-Baltimore, etc., R. Co. v. Morehead, 5 W. Va. 293. Eng. Nugent v. Smith, 1 C. P. D. 19, 1 ERC 218 [rev on other grounds 1 C. P. D. 423]. [a] Degree of diligence required.In the case of accident or emergency, the carrier "is bound to such means as would suggest themselves to, and be within the knowledge and capacity of well-informed and competent business men in such positions, and such diligence as prudent, skillful men, engaged in that kind of business, might fairly be expected to use under like circumstances, and that this diligence and those means should be actively used to protect and secure the property confided to their care. That they should use actively and energetically all the known means which may fairly be expected to be found within the knowledge of men of average qualifications engaged in business of this kind." Nashville, etc.. R. Co. v. David, 6 Heisk. (Tenn.) 261, 19 AmR 594 [quot with approval in Lamont v. Nashville, etc., R. Co., 9 reasonable care to preserve the goods from loss or injury after the occurrence of the flood;95 and this duty is a continuing one as long as the loss is avoidable.96 However, a carrier is not negligent because it fails to guard against a rise of water not reasonably to be expected;97 and there may be other acts or omissions on the part of the carrier that under the peculiar circumstances do not constitute such negligence as to impose liability on the carrier.98 Heisk. (Tenn.) 58, 66]. [b] Perishable goods.-The loss or damage to perishable articles in consequence of the weather will not excuse the carrier, if it could have been prevented by due care and diligence. The carrier must show not only that it did all that was usual, but also all that was necessary to be done under the circumstances. Georgia Southern, etc., R. Co. v. Barfield, 1 Ga. A. 203, 58 SE 236; Wing v. New York, etc., R. Co., 1 Hilt. (N. Y.) 235; Philleo v. Sandford, 17 Tex. 230, 67 AmD 654. 94. Okl-Armstrong Illinois Cent, R. Co., 26 Okl. 352, 109 P 216, 29 LRANS 671 and note. Pa.-Smith v. Baltimore, etc., R. Co., 223 Pa. 118, 72 A 264. V. Tenn.-Nashville, etc., R. Co. V. David, 6 Heisk. 261, 19 AmR 594 (holding in accordance with this principle that a charge imposing on the carrier the duty to use "all the diligence which human sagacity can suggest" was erroneous). Tex. International, etc., R. Co. v. Bergman, (Civ. A.) 64 SW 999. Eng.-Nugent v. Smith, 1 C. P. D. 423. "All that can be required of the carrier is that he shall do all that is reasonably and practically possible to insure the safety of the goods. If he uses all the known means to which prudent and experienced carriers ordinarily have recourse, he does all that can be reasonably required of him; and if, under such circumstances, he is overpowered by storm or other natural agency, he is within the rule which gives immunity from the effects of such vis major as the act of God. I do not think that because some may have discovered some more efficient method of securing the goods which has not become generally known, or because it cannot be proved that if the skill and ingenuity of engineers or others were directed to the subject something more efficient might not be produced, that the carrier can be made liable." Nugent v. Smith, 1 C. P. D. 423, 437 (per Cockburn, C. J.). one 95. Ala.-Smith v. Western R. Co., 91 Ala. 455, 8 S 754, 24 AmSR 929, 11 LRA 619. Fla. Gulf Coast Transp. Co. V. Howell, 70 Fla. 544, 76 S 567. Ga. Savannah, etc., R. Co. v. Commercial Guano Co., 103 Ga. 590, 30 SE 555. La. National Rice Milling Co. v. New Orleans, etc., R. Co., 132 La. 615, 61 S 708, AnnCas1914D 1099. Md.-Baltimore, etc., R. Co. V. Keedy, 75 Md. 320, 23 A 643. Mo.-Clark v. Pacific R. Co., 39 Mo. 184, 90 AmD 458; Lightfoot v. St. Louis, etc., R. Co., 126 Mo. A. 532, 104 SW 482; Lamar Mfg. Co. v. St. Louis, etc., R. Co., 117 Mo. A. 453, 93 SW 851; Pinkerton v. Missouri Pac. R. Co., 117 Mo. A. 288, 93 SW 849; Moffatt Commn. Co. v. Union Pac. R. Co., 113 Mo. A. 544, 88 SW 117. Mont.-Wahle v. Great Northern R. Co., 41 Mont. 326, 109 P 713. Nebr.-Wabash R. Co. v. Sharpe, 76 Nebr. 424, 107 NW 758, 124 AmSR 823. N. Y.-Barnet v. New York Cent., etc., Co., 153 NYS 374. Pa.-Cunningham v. Pennsylvania R. Co., 50 Pa. Super. 609. S. C.-Harzvurg v. Southern R. Co., 65 S. C. 539. 44 SE 75. V. Tenn.-Illinois Cent. R. Co. Kuhn, 107 Tenn. 106, 64 SW 202; Nashville, etc., R. Co. v. David, 6 Heisk. 261, 19 AmR 594. Tex.-International, etc., R. Co. v. Bergman, 64 SW 999; St. Louis, etc., R. Co. v. Bland, 34 SW 675; Atchison, etc., R. Co. v. Madden, 46 Tex. Civ. A. 597, 103 SW 1193; Fentiman v. Atchison, etc., R. Co., 44 Tex. Civ. A. 455, 98 SW 939; Missouri, etc., R. Co. v. Davidson, 25 Tex. Civ. A. 134, 60 SW 278 (holding that it is duty of railroads in constructing their roadbeds to guard against floods which may be anticipated, although some may be extraordinary and unusual). W. Va.-McGraw v. Baltimore, etc., R. Co., 18 W. Va. 361, 41 AmR 696. Eng.-Nugent v. Smith, 1 C. P. D. 423. [a] Applications of rule.-(1) Where a railroad company, connecting with a boat, unloaded freight intended for the boat on the river bank below high water mark when it was raining and the river was rising, the boat not then being at the wharf and there being no necessity for unloading at that time, the company cannot escape liability for damage to the goods caused by their being submerged, on the ground that the damage was caused by an act of God. Savannah, etc., R. Co. v. Commercial Guano Co., 103 Ga. 590, 30 SE 555. (2) When a car containing a shipment of goods by plaintiff reached the carrier's yards the water in a river, by reason of an unusual freshet, was two and three-quarters feet higher than the highest previous record. The water continued to rise until it reached unslaked lime in another car in the yards, causing the lime to burn and destroy plaintiff's goods. It was held that the carrier's negligence, if it was negligent in placing plaintiff's goods near the car of lime, was the proximate cause of the destruction of the goods. Barnet v. New York Cent., etc., R. Co., 153 NYS 374, 375. [b] Even extraordinary floods, if they are such as may reasonably be anticipated, must be guarded against. without reference to the infrequency of their occurrence. Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 SW 722. [c] Although the bill of lading under which the property is shipped provided that the carrier should not be liable for any loss caused by flood, the rule has been applied. Cunningham v. Pennsylvania R. Co., 50 Pa. Super. 609. 96. Cunningham v. Pennsylvania R. Co., 50 Pa. Super. 609. 97. Empire State Cattle Co. v. Atchison, etc., R. Co.. 135 Fed. 135 [aff in 147 Fed. 457. 77 CCA 601 (210 U. S. 1, 28 SCt 607, 52 L. ed. 931, 15 AnnCas 70)]: Smith V. Baltimore, etc., R. Co., 223 Pa. 118. 72 A 264. 98. Armstrong v. Illinois Cent. R. Co., 26 Okl. 352, 109 P 216, 29 LRANS 671. [a] Thus where a carrier received a car of organs on a certain day in regular course of business, together with seventy-four other cars, the act of the carrier in tendering such car on the following day with the others to a connecting carrier which accepted only forty of them, declining the others on account of its inability to handle them because of a flood, did not show negligence of the carrier contributing to the damage of the organs in such car by the flood. Arm strong v. Illinois Cent. R. Co., 26 Okl. 352. 109 P 216, 29 LRANS 671. [b] Duty to notify consignee.-In Duty to dry wet goods. Where goods are wet by an extraordinary flood, the carrier may still be held liable for damages resulting from not drying them or for refusal to deliver them to the consignee for drying when it had no facilities for doing so." 99 Duty to remove to place of safety. If the carrier failed to act promptly on an alarm of impending danger by a rising flood to a carload of goods standing on a sidetrack, and failed to have the car moved to a place of safety before the flood reached such a height that it was impossible to move it, and the goods were consequently ruined, the company is liable for the loss.1 Duty to forward by another route. Where the transportation of certain goods was delayed by the unusually high waters, and it did not appear that the carrier, knowing that a delay would result in their loss, made any effort to send them by another route, it was held liable.2 Storms. If the carrier, after becoming aware of a storm and impending danger to goods, could, by the exercise of such care as a man of ordinary prudence would have exercised under like circumstances, have protected the goods from the consequences of the disaster and failed so to do, the carrier is liable, notwithstanding the storm itself was of unprecedented violence and could not have been foreseen at the time of the negligent delay, and when a delivery, by the exercise of due care, was possible. But in order to charge a common carrier with goods lost in an unprecedented storm, plaintiff must show that by ordinary prudence it could have protected the goods after becoming aware of the impending danger.* Warning by weather bureau or absence of such warning. A common carrier is responsible for injuries to freight by a flood, where at the date the goods were delivered the officer in charge of the United States weather bureau notified all railroad companies of the coming flood and warned them to guard their property in the lowlands, and the carrier exposed the goods negligently to injury, Richmond, etc., R. Co. v. White, 88 Ga. 805, 15 SE 802, it appeared that a part of the goods lost in a flood had arrived at their destination some time before, but that the carrier had failed to give the consignees notice of their arrival. The court held that, in the absence of any custom, the failure to give notice would not have been imputed to the carrier as negligence, but that as a custom to give notice was shown, a failure to give it in this instance was negligence which would render the carrier liable. 99. Pearce v. The Thomas Newton, 41 Fed, 106 (dry goods); The Steamboat Lynx v. King, 12 Mo. 272, 49 AmD 135 (grain); Chouteaux v. Leech, 18 Pa. 224, 57, AmD 602 (furs). 1. Baltimore, etc., R. Co. v. Keedy, 75 Md. 320, 23 A 643. See also Pinkerton v. Missouri Pac. R. Co., 117 Mo. A. 288, 93 SW 819. 2. Chicago, etc., R. Co. v. Manning, 23 Nebr. 552, 37 NW 462. 3. International, etc.. R. Co. V. Bergman, (Tex. Civ. A.) 64 SW 999. 4. International, etc., N. R. Co. v. Bergman, (Tex. Civ. A.) 64 SW 999. 5. Wabash R. Co. v. Sharpe, 76 Nebr. 424, 107 NW 758, 124 AmSR 823. 6. National Rice Milling Co. V. New Orleans, etc., R. Co., 132 La. 615, 61 S 708, AnnCas1914D 1099. 7. Woodward v. Illinois Cent. R. Co., 30 F. Cas. No. 18,007, 1 Biss. 447. 8. Wolf v. American Express Co., 43 Mo. 421, 97 Am D 406 and note. and it cannot in such case plead the act of God as a defense. And on the other hand, inaccuracy in a weather bureau's forecast is no defense, where the carrier showed no reasonable activity to protect the shipment after being warned of the impending flood." Fire. Although goods shipped catch fire without the carrier's negligence, yet if its agents do not make all proper necessary efforts to save the goods it is still responsible for all that might have been saved, and for any portion saved the carrier is liable, no matter what afterward becomes of it. Cold weather. A carrier will be liable for loss or injury to goods caused by freezing after termination of the transportation, where it failed properly to store them and to protect them against freezing weather.8 [§ 163] E. Effect of Right of Carrier to Refuse to Receive Goods. According to some decisions, although the carrier may have a reasonable ground for refusing to receive goods offered for transportation, yet if it does receive them its common-law liability immediately attaches, and it can exonerate itself from liability only by showing loss by the act of God or of the public enemy, or by the shipper's negligence. As already shown, however, the decided weight of authority is against this position.1 10 [§ 164] F. Insurance by Carrier against Usual Risks as Affecting Liability. The fact that the carrier gets the goods insured against the usual risk does not in any way lessen its responsibility to the shipper, but rather increases its means of meeting that responsibility." [§ 165] G. Effect of Interstate Commerce Act and Its Amendments on Liability. The commonlaw liability imposed on common carriers as outlined in preceding sections of this chapter12 is applicable to interstate as well as to intra-state shipments." This liability is neither increased nor diminished by the Carmack amendment.14 [§ 166] H. The Louisiana Doctrine. The pres 13 48 S. C. L. 181. See as fully support- | livered. The suggestion that an abing this doctrine cases supra § 145 note 97, § 147 note 20. Compare Pearson v. Duane, 4 Wall. (U. S.) 605, 18 L. ed. 447 (where the same principle applied as to a carrier of passengers). 10. See supra § 145 note 95, § 147 note 17. 11. Spriggs v. Rutland R. Co., 77 Vt. 347, 60 A 143. And see Phoenix Ins. Co. v. Erie, etc., Transp. Co., 117 U. S. 312, 6 SCt 750, 29 L. ed. 873 (as sustaining this rule). 12. See supra § 129 et seq. 13. Ficklin v. Wabash R. Co., 117 Mo. A. 221, 228, 93 SW 847 (where it was said: "The contention that the common law is not followed by the Federal courts except in cases controlled by State laws and that as this case falls within the purview of the interstate commerce law, the common law should not be followed, requires no further notice than the statement that the common law as affecting interstate shipments is distinctly recognized in Cau v. Texas, etc.. R. Co., 194 U. S. 427, 24 SCt 663, 48 L. ed. 1053"). 14. Adams Express Co. v. Croninger, 226 U. S. 491, 33 SCt 148, 57 L. ed. 314, 44 LRANS 257 and note (where it was said: "What is the liability imposed upon the carrier? It is a liability to any holder of the bill of lading which the primary carrier is required to issue for any loss, damage or injury to such property caused by it.' or by any connecting carrier to whom the goods are de or solute liability exists for every loss, damage, or injury, from any and every cause, would be to make such a carrier an absolute insurer and liable for unavoidable loss or damage, though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words, any loss damage,' would be to ignore the qualifying words, 'caused by it.' The liability thus imposed is limited to any loss, injury or damage caused by it or a succeeding carrier to whom the property may be delivered.' and plainly implies a liability for some default in its common-law duty as a common carrier"); Cleveland, etc., R. Co. v. Hayes, 181 Ind. 87, 102 NE 34, 103 NE 839 (holding that the Carmack amendment which provides that common carriers receiving property for interstate shipment shall be liable for any loss or injury caused by them or by any connecting carrier does not hold carriers liable for injuries caused by the act of God or of the public enemy). Contra Missouri, etc., R. Co. v. French. (Okl.) 152 P 591 (holding that by the Carmack amendment to the Interstate Commerce Act of Febr. 4, 1887 [24 U. S. St. at L. 386 c 104 § 201 as amended by Act June 29, 1906 [34 U. S. St. at L. 595 c 3591 § 71 congress has relieved carriers of interstate shipments from the liability of insurers as it was at common law, and the liability imposed on such carriers is limited to any loss, injury, or dam 15 ent provision of the civil code is to the effect that carriers are liable for loss of or damage to goods intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.1 A few decisions and dicta are to the effect that, under the law of this state, the liability of the carrier is the same as at common law.16 But an early decision under the code of 1808, which differs in some respects from the present provision holds that a common carrier is not to be held to the same strict liability as under the common law;17 and the latest authori tative exposition of the present code provision, which reviews all the previous decisions on the question, holds that, while at common law the carrier is considered as in the nature of an insurer for loss by fire, unless it is caused by lightning, the civil law does not go to this extent; but, on the other hand, it does require the carrier to prove the precise cause of the fire; that it was impossible for human prudence to foresee or to prevent the loss; and that no act of imprudence or negligence is chargeable to the carrier.18 VIII. LIMITING OR EXTENDING COMMON-LAW LIABILITY BY CONTRACT [167] A. Extending Common-Law Liability. By a special contract the carrier may extend its common-law liability so as to be answerable for loss or damage for which it would not be accountable under the common-law rule, or by statute," provided the contract is not in conflict with the law.20 19 [168] B. Limiting Common-Law Liability21. 1. Right to Limit Liability-a. Statement of General Rule. While considerations of public policy have been potent in influencing the courts to recognize a rule of liability, in the case of com mon carriers, much stricter than that recognized as applying in the case of ordinary bailees, the courts have not thought it necessary to deny the parties to a contract of carriage the right to exonerate the carrier from its extraordinary liability, where there is no constitutional or statutory provision forbidding it, and the general proposition has been almost universally recognized that by special agreement, or by notice to the shipper acquiesced in by him, the common carrier may limit its commonlaw liability.22 And it is stated as a general proposition in a great number of decisions that the com Chicago, etc., R. Co. v. Cotton, 87 age caused by it or by a succeeding | 9 Allen (Mass.) 299. (2) Where in | Oakley, 115 Ark. 20, 170 SW 565; carrier to which the property may be delivered, and plainly implies some default in it or some negligence on the part of the initial carrier or of some connecting line over which the property is transported). This decision is founded on a misconstruction of Adams Express Co. v. Croninger, 226 U. S. 491, 33 SCt 148, 57 L. ed. 314, 44 LRANS 257 and note, which it assumes to follow, and is obviously erroneous. Compare infra § 173. 15. Rev. Civ. Code (1870) art 2754 (which provision is in the same language as the provision of 1808, except that the word "and" is substituted for the word "or"). 16. Pitre v. Offutt, 21 La. Ann. 679, 99 AmD 749; Cramwell v. The Fanny Fosdick, 15 La. Ann. 437, 77 AmD 190; Thomas v. The Morning Glory, 13 La. Ann. 269, 71 AmD 509; Brousseau v. Hudson, 11 La. Ann. 427. 17. Hunt v. Norris, 6 Mart. (La.) 676, 12 AmD 489. 18. Lehman V. Morgan's Louisiana. etc.. R., etc.. Co., 115 La. Ann. 1. 38 S 873, 112 AmSR 259, 70 LRA 562, 5 AnnCas 818 and note. And see dictum in Darrall v. Southern Pac. Co.. 47 La. Ann. 1455, 1461, 17 S 884 (where the court said: "Our code does not impose on carriers the responsibility incident to the relation under the common law"). 19. Mass.-Gage v. Tirrell, 9 Allen 299. Minn. McCauley v. Davidson, 10 Minn. 418, 13 Minn. 162. Miss. Neal Miss. 572, 41 AmD 609 (recognizing the rule). V. Saunderson, 10 N. Y.-Price v. Hartshorn, 44 N. Y. 94, 4 AmR 645 (recognizing the rule). S. C.-Gaither v. Barnet, 4 S. C. L. 488. Co. V. V. Tenn.-Southern Express Co. Glenn, 16 Lea 472, 1 SW 102. Tex.-St. Louis, etc., R. Hicks, (Civ. A.) 158 SW 192. And see Morrison v. Davis, 20 Pa. 171, 57 AmD 695 (holding that the implication from loss occasioned by inevitable accident may be repelled by evidence that the carrier, by advertisements and circulars, held himself out to insure safe delivery without exception). [a] Rule applied.-(1) The mere fact that by the bill of lading only one of the common-law exceptions is preserved will not give rise to the inference that other exceptions are not to be relied on. Gage v. Tirrell, the bill of lading receipt of the goods V. Take care of live stock in transit Limitation of liability for loss or in- Operation and effect of contract lim- 22. U. S.-York Mfg. Co. v. Illi- Ala.-Louisville, etc.. R. Co. V. Fla. Atlantic Coast Line R. Co. v. Hinely-Stephens Co., 64 Fla. 175, 60 S 749, AnnCas1914B 999; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 S 377, 20 AnnCas 1047 (where it was said, however, that contracts limiting the common-law liability of carriers are not favored by the courts); Summerlin v. Seaboard Air Line R. Co., 56 Fla. 687, 47 S 557, 131 AmSR 164, 19 LRANS 191; Atlantic Coast Line R. Co. v. Dexter, 50 Fla. 180, 39 S 634, 111 Am SR 116; Clyde SS. Co. v. Burrows, 36 Fla. 121, 18 S 349. Ga.-Atlantic, etc., R. Co. v. Jacobs, 135 Ga. 113, 68 SE 1039; Brannon v. Atlantic R. Co., 4 Ga. A. 749, 62 SE 468. Ida. McIntosh v. Oregon R., etc., Il-Baltimore, etc., 198. Kan. Metz v. Chicago, etc., R. Co., 90 Kan. 460, 135 P 667; Sprague v. Missouri Pac. R. Co., 34 Kan. 347, 8 P 465; Kallman v. U. S. Express Co., 3 Kan. 205. Ky. Cincinnati Southern R. Co. v. Potts, 10 Ky. Op. 394; Louisville, etc., R. Co. v. Lockman, 9 Ky. Op. 817. La.-Thomas V. The Morning Glory, 13 La. Ann. 269, 71 AmD 509; Truxillo v. Texas, etc., R. Co., 7 La. A. (Orleans) 18. Me.-Young v. Maine Cent. R. Co., 113 Me. 113, 93 A 48. Mass.-Cox v. Central Vermont R. Co., 170 Mass. 129, 49 NE 97; Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 AmR 106. Mich. Michigan Cent. R. Co. v. Hale, 6 Mich. 243. Minn.-Rustad v. Great Northern R. Co., 122 Minn. 453, 142 NW 727; Ostroot v. Northern Pac. R. Co.,, 111 Minn. 504, 127 NW 177; Murphy v. Wells, 99 Minn. 230, 108 NW 1070. Miss. Newberger Cotton Co. V. Illinois Cent. R. Co., 75 Miss. 303, 23 S 186; Chicago, etc., R. Co. v. Abels, 60 Miss. 1017; Whitesides v. Thurlkill, 20 Miss. 599, 51 AmD 128. mon carrier may by contract limit its liability, except for damages or loss resulting from the negligence of the carrier or its agents or servants.23 [§ 169] b. Considerations Authorizing Relaxa tion of Common-Law Doctrine. Briefly summarized the reasons assigned for permitting common carriers to limit their common-law liability by contract are: (1) Changed methods and conditions Mo.-Simmons Hardware Co. v. St. | Oregon Short Line R. Co., 35 Utah | Hartford, etc., Steamboat Co.. 43 Louis, etc., R. Co., 140 Mo. A. 130, 120 241, 99 P 1072, 136 AmSR 1052, 19 Conn. 333; Welch v. Boston, etc., R. SW 663; Ficklin v. Wabash R. Co., AnnCas 803. Co., 41 Conn. 333. 117 Mo. A. 221, 93 SW 847; Dymock v. Missouri, etc., R. Co., 54 Mo. A. 400. Mont.-Wall v. Northern Pac. R. Co., 50 Mont. 122, 145 P 291; Rose v. Northern Pac. R. Co.. 35 Mont. 70, 88 P 767, 119 AmSR 836. N. J.-Trenton Pass R. Co. V. Guarantors Liability Indemn. Co., 60 N. J. L. 246, 37 A 609, 44 LRA 213; Taylor v. Pennsylvania R. Co., 8 N. J. L. J. 149. N. Y.-Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Wilcox v. Corwin, 50 Hun 425 [rev on other grounds 117 N. Y. 500, 23 NE 165]; Moore v. Evans 14 Barb. 524; Mori arty V. Harden's Express, 1 Daly 227; Bennett v. Virginia Transfer Co., 80 Misc. 222, 140 NYS 1055. N. C.-Lyon v. Atlantic Coast Line R. Co.. 165 N. C. 143 81 SE 1: Kime v. Southern R. Co., 160 N. C. 457, 76 SE 509, 43 LRANS 617; Capehart v. Seaboard etc., R. Co., 81 N. C. 438. 31 AmR 505. See J. M. Pace Mule Co. v. Seaboard Air Line R. Co., 160 N. C. 215, 221, 76 SE 513 [quot Cyc]. Oh.-Davidson v. Graham, 2 Oh. St. 131; Cincinnati, etc., R. Co. V. Berdan, 22 Oh. Cir. Ct. 326, 12 Oh. Cir. Dec. 481; American Roofing Co. V. Memphis, etc.. Packet Co., 8 OhS&CP 490, 5 OhNP 146. Vt.-Blumenthal V. Brainerd, 38 Vt. 402, 91 AmD 349: Kimball V. Rutland, etc., R. Co., 26 Vt. 247, 62 AmD 567. Va.-Virginia, etc., R. Co. v. Sayers, 26 Gratt. (67 Va.) 328. W. Va.-Baltimore, etc., R. Co. v. Skeels, 3 W. Va. 556. Wis.-Boorman V. American Express Co., 21 Wis. 152. Wyo.-Oregon Short Line R. Co. v. Blyth, 19 Wyo. 410, 118 P 649, 119 P 875, AnnCasi913E 288. Eng.-DeRothschild v. Royal Mail Steam Packet Co., 7 Exch. 734, 155 Reprint 1145. [a] There have been a few expressions of opinion contrary to this proposition, (1) as in Fish v. Chapman, 2 Ga. 349, 46 AmD 393, where it is said that the common carrier is liable at all events but for the act of God and of the king's enemy, and that he cannot limit or vary that liability; (2) and in Gould v. Hill, 2 Hill (N. Y.) 623, where it is said that a common carrier cannot limit his common-law liability by contract. (3) [But this case has been departed from in that state since the decision by the supreme court of the United States in New Jersey Steam Nav. Co. v. Boston Merchants' Bank, 6 How. (U. S.) 344, 12 L. ed. 465; Moore v. Okl.-St. Louis, etc., R. Co. V. Evans, 14 Barb. (N. Y.) 524; Parsons Zickafoose, 39 Okl. 302, 135 P 406; v. Monteath, 13 Barb. (N. Y.) 353]. Chicago, etc., R. Co. v. Conway, 34 (4) In Wilson v. Shulkin, 51 N. Č. Okl. 356, 125 P 1110; St. Louis, etc., 375, the validity of a contract limitR. Co. v. Ladd, 33 Okl. 160, 124 Ping the carrier's common-law liabil461; Chicago, etc., R. Co. v. Spears, ity was doubted. 31 Okl. 469, 122 P 228; St. Louis, etc., R. Co. v. Young, 30 Okl. 588, 120 P 999; Midland Valley R. Co. v. Ezell, 29 Okl. 40, 116 P 163; Missouri, etc., R. Co. v. Hancock, 26 Okl. 265, 109 P 223; Missouri, etc., R. Co. v. Hancock, 26 Okl. 254, 109 P 220; St. Louis, etc., R. Co. v. Cake, 25 Okl. 227. 105 P 322; Chicago, etc., R. Co. v. Wehrman, 25 Okl. 147, 105 P 328; Patterson v. Missouri, etc., R. Co., 24 Okl. 747, 104 P 31; Missouri, etc., R. Co. v. Davis, 24 Okl. 677, 104 P 34, 24 LRANS 866; St. Louis, etc.. R. Co. v. Copeland, 23 Okl. 837, 102 P 104. It is to be noted that the contracts involved in the above decisions were entered into prior to the erection of the territory into a state. Hence the decisions of the supreme court of the United States controlled in the construction such contracts. Since the erection of the state, the same rule must necessarily obtain as to interstate shipments. St. Louis, etc., R. Co. v. Bilby, 35 Okl. 589, 130 P 1089. As regards intra-state shipments, the rule is otherwise because of constitutional provisions. See infra § 171 note 31 [f]. of Or.-Lacey v. Oregon R., etc., Co., 63 Or. 596, 128 P 999; Wells v. Great Northern R. Co., 59 Or. 165, 114 P 92, 116 P 1070, 34 LRANS 818, 825. Pa.-Wolf v. Western Union Tel. Co., 62 Pa. 83, 1 AmR 387; American Express Co. v. Sands, 55 Pa. 140; Farnham v. Camden, etc., R. Co., 55 Pa. 53; Laing v. Colder, 8 Pa. 479, 49 AmD 533; Fern v. Adams Express Co., 51 Pa. Super. 204; Penn Clothing Co. v. U. S. Express Co., 48 Pa. Super. 520; Menner v. Delaware, etc., Canal Co., 7 Pa. Super. 135. S. C.-Southern R. Co. v. Kimball, 103 S. C. 365, 88 SE 14; Swindler v. Hilliard, 31 S. C. L. 286, 45 AmD 732. Tenn.-Louisville, etc., R. Co. v. Gilbert, 88 Tenn. 430, 12 SW 1018, 7 LRA 162. Utah.-Homer V. Oregon Short Line R. Co., 42 Utah 15, 128 P 522; Larsen v. Oregon Short Line R. Co., 38 Utah 130, 110 P 983; Benson V. V. [b] The fact that by charter a railroad company is made liable as a common carrier does not prevent a limitation of its liability by contract. Michigan Southern, etc., R. Co. v. McDonough, 21 Mich. 165, 4 AmR 466; McMillan Michigan Southern, etc., R. Co., 16 Mich. 79, 93 AmD 208; Michigan Cent. R. Co. v. Hale, 6 Mich. 243; Michigan Cent. R. Co. v. Ward, 2 Mich. 538. [c] Historical development.Originally carriers were insurers of the safety of the goods against every loss except such as occurred by an act of God or of the public enemy, and any contract relieving them of any part of that obligation was held to be void. Gradually they have been permitted to contract for exemption from some of their liability, and public policy seems now effective only to the extent of prohibiting their exemption by contract from any losses occurring by reason of their negligence or the negligence of their servants. For such law losses the founded on public Trenpolicy still holds them bound. ton Pass. R. Co. v. Guarantors Liability Indem. Co., 60 N. J. L. 246, 37 A 609, 44 LRA 213. 23. U. S.-Missouri Pac. R. Co. v. Harper, 201 Fed. 671, 121 CCA 571; George N. Pierce Co. v. Wells, 189 Fed. 561, 110 CCA 645 [aff 236 U. S. 278, 35 SCt 351, 59 L. ed. 576]; Ormsby v. Union Pac. R. Co., 4 Fed. 706, 8 McCrary 48; Leitch v. Union R. Transp. Co.. 15 F. Cas. No. 8,224; Seller v. The Pacific, 21 F. Cas. No. 12,644, Deady 17, 1 Or. 409. Ala.-Central of Georgia R. Co. v. Burton, 165 Ala. 425, 51 S 643: Grev v. Mobile Trade Co., 55 Ala. 387, 28 AmR 729; South, etc.. Alabama R. Co. v. Henlein, 52 Ala. 606, 23 AmR 578; Mobile, etc., R. Co. v. Jarboe, 41 Ala. 644. Ariz.-Santa Fé, etc., R. Co. V. Grant Bros. Constr. Co., 13 Ariz. 186, 108 P 467. Conn.-Candee v. New York, etc., R. Co., 73 Conn. 667, 49 A 17; Coupland v. Housatonic R. Co.. 61 Conn. 531, 23 A 870, 15 LRA 534; Camp v. Ga.-Central of Georgia R. Co. v. City Mills Co., 128 Ga. 841, 58 SE 197; Central of Georgia R. Co. V. Hall, 124 Ga. 322, 52 SE 679, 110 Am SR 170, 4 LRANS 898, 4 AnnCas 128. Hawaii.-Laupahoehoe Sugar Co. v. Wilder SS. Co., 11 Hawaii 261. Ill.-Ellison v. Adams Express Co., 245 Ill. 410, 92 NE 277; Merchants' Ditspatch Transp. Co. v. Leysor, 89 Ill. 43; Illinois Cent. R. Co. v. Morrison, 19 Ill. 136; Illinois Cent. R. Co. v. Jonte, 13 Ill. A. 424. Ind.-Bartlett v. Pittsburgh, etc., R. Co., 94 Ind. 281; Thayer v. St. Louis, etc., R. Co., 22 Ind. 26, 85 AmD 409; Indianapolis, etc., R. Co. v. Forsythe, 4 Ind. A. 326, 29 NE 1138. Kan. Missouri Valley R. Co. V. Caldwell, 8 Kan. 244. La.-Newman V. Smoker 25 La. Ann. 303; Roberts v. Riley, 15 La. Ann. 103, 77 AmD 183. Me.-Hix v. Eastern SS. Co., 107 Me. 357, 78 A 379; Gerry v. American Express Co.. 100 Me. 519, 62 A 498; Fisher v. Boston, etc., R. Co., 99 Me. 338, 59 A 532, 105 AmSR 283, 68 LRA 390; Morse v. Canadian Pac. R. Co., 97 Me. 77, 53 A 874; Fillebrown v. Grand Trunk R. Co., 55 Me. 462, 92 AmD 606. Mass. Squire v. New York Cent. R. Co., 98 Mass. 239, 93 AmD 162; Buckland v. Adams Express Co., 97 Mass. 124. 93 AmD 68; Ellis V. American Tel. Co., 13 Allen 234. Minn. O'Malley v. Great Northern R. Co., 86 Minn. 380, 90 NW 974. Miss. Southern Express Co. V. Hunnicutt, 54 Miss. 566, 28 Am R 385. V. Mo.-Dawson v. St. Louis, etc., R. Co., 76 Mo. 514; Rice v. Kansas Pac. Mo. R. Co., 63 314; Craycroft Atchison, etc., R. Co., 18 Mo. A. 487; Kirby v. Adams Express Co., 2 Mo. A. 369. American Ex V. N. H.-Merrill press Co., 62 N. H. 514. N. J.-Russell v. Erie R. Co., 70 N. J. L. 808, 59 A 150, 67 LRA 433, 1 AnnCas 672. N. Y.-Belger v. Dinsmore, 51 N. Y. 166, 10 AmR 575; Penn v. Buffalo, etc., R. Co., 49 N. Y. 204, 10 AmR 355; Blossom v. Dodd, 43 N. Y. 264. 3 AmR 701; Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485, 62 AmD 125; Stedman V. Western Transp. Co., 48 Barb. 97; Moore v. Evans, 14 Barb. 524; Sunderland v. Westcott, 32 N. Y. Super. 260. 40 How Pr 468; Stoddard v. Long Island R. Co., 7 N. Y. Super. 180; Landsberg v. Dinsmore, 4 Daly 490; Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith 115; Slocum v. Fairchild, 7 Hill 292. Oh.-Pittsburgh, etc.. R. Co. V. Barrett, 36 Oh. St. 448; Gaines v. Union Transp., etc., Co., 28 Oh. St. 418; Graham v. Davis, 4 Oh. St. 362, 62 AmD 285; Davidson v. Graham, 2 Oh. St. 131. R. Okl.-St. Louis, etc., R. Co. v. Phillips, 17 Okl. 264, 87 P 470. Pa.-Allam V. Pennsylvania Co., 183 Pa. 174, 38 A 709. 39 LRA 535; Farnham v. Camden, etc., R. Co.. 55 Pa. 53; Bingham V. Rogers, 6 Watts & S. 495, 40 AmD 581; Leh v. Delaware, etc., R. Co., 30 Pa. Super. 396. S. C.-Wallingford V. Columbia, etc., R. Co., 26 S. C. 258, 2 SE 19; Baker v. Brinson. 43 S. C. L. 201, 67 AmD 548; Swindler v. Hilliard, 31 S. C. L. 286, 45 AmD 732. |