Coopek, J.,
delivered the opinion of the court.
The question whether a common carrier may, by special ■contract, secure exemption from his common-law liability as insurer of goods where the loss or injury results from his own negligence, has been • differently answered by the courts of the different States. Those of New York, following the English decisions, hold that he may contract for immunity even as against the gross negligence of himself or servants. Smith v. C. R. R., 24 N. Y. 222 ; Magnin v. Dismore, 56 N. Y. 168 ; Mynard v. R. R., 7 Hun, 399.
In some of the States a distinction is drawn between gross [1011]*1011negligence, as to which protection by contract is not allowed, and slight or ordinary negligence from the effects of which immunity may be gained by agreement. Hutchinson on Car., •sect. 260, and authorities thei’e cited.
In this State it is settled that a contract by which a common ■carrier stipulates for exemption from liability for losses occurring from his own negligence of any grade is against public policy and void. Whitesides v. Thurlkill, 12 Smed. & M. 599 ; Express Co. v. Moon, 39 Miss. 822 ; R. R. Co. v. Weiner, 49 Miss. 725 ; R. R. Co. v. Faler, 58 Miss. 911.
In R. R. Co v. Faler it was said that it was negligence per se for a railroad company to transport so inflammable a material as cotton on an open, unprotected car. In that case the shipper had agreed to take upon himself the risk of loss by fire, but had not agreed that the cotton might be carried on open cars. In this case there was an express contract by which the shipper agreed, in consideration of a reduction in freights, that the cotton might be so transported and that he ■would carry the risk of loss by fire. Whether the carriage of 'Cotton on open cars is negligence in the sense that even by ■contract immuuity may not be secured by the carrier against ■loss, or whether it is only a less safe means of transportation which the carrier may not employ without the assent of the shipper, but by contract with him may acquire the right to use, and free himself from liability for loss arising from such course of shipment where there is no negligence on the part of the carrier, we do not find it now necessary to decide, as this case was tried in the court below upon the theory that the special contract was valid.
The instructions given by the court below on the application ■of the plaintiffs were objected to by the defendant, and are .assigned as error here.
By the fifth instruction for the plaintiffs the court ■charged the jury that “ it was the duty of the defendants to take due- precaution to protect the cotton from loss by fire, and to provide all such suitable means and appliances to prevent said cotton from catching fire and then for [1012]*1012extinguishing it if it should catch, and in considering the question as to whether the defendants did this, the jury will take into consideration the character of the cotton as to whether inflammable and combustible, and its liability to ignite, and if they find that such reasonable precautions were not taken, and the cotton was destroyed by fire by reason of defendant’s failure to provide such appliances or take such precautions, then 'the defendant is liable, notwithstanding the special contract.” Other instructions were given announcing practically the same proposition. It is now argued by the appellant’s counsel that the effect of this instruction was to deprive the defendant of the privilege it had acquired to trans port the cotton on open cars, because, as is said, the “ appli anees necessary to prevent said cotton from catching fire,” necessarily meant some covering impervious to fire. A careful examination of the record impresses us with the conviction that this was not the construction put upon these words on the trial in the lower court. It was there assumed that the special contract under which the cotton was being carried was valid, and the contract evidently contemplated a transportation of the cotton on open cars without the protection of covering. The defendant obtained an instruction that it might, by contract with the shipper, acquire the right to carry the cotton on flat cars, and another that “ if the plaintiffs agreed with defendant for a consideration, that the defendant might transport the cotton on flat cars, then plaintiffs assumed all the risks to which cotton thus shipped was ordinarily exposed, after due care, caution and protection on the part of the carrier.” The court also refused an instruction asked by the plaintiffs, in which it was announced that it was negligence on the part of the carrier to carry the cotton on any other than the safest vehicle in use for carrying the particular property. From these instructions it appears to us that if the plaintiffs had in argument to the jury or otherwise attempted to construe the instruction given for them as requiring the defendant to cover the cotton, an additional and qualifying instruction would [1013]*1013have been asked by the defendants. It appears that a rale of the defendant required buckets of water to be carried on each flat car loaded with cotton and that when the cotton which was burned near Winona was discovered to be on fire there were no such buckets on the car. In view of the character of the instructions given, and of this testimony, we must assume that this water was “ the appliance ” to prevent the firing of the cotton, the absence of which was pointed on by counsel for the plaintiffs. Viewed in this light, the instruction was not erroneous.
The court, on the application of the plaintiff, also instructed the jury that it devolved on the defendant to prove not only that the loss occurred by the excepted cause under the special contract, but also that such loss by such was without negligence on the part of defendant or its employees. This is also assigned for error. Where goods are received for transportation by a common carrier, under a special contract by which his common-law liability as insurer is limited, it is held by a number of courts (in fact by a majority of them), that the carrier, having proved the loss to have occurred by reason of the excepted cause, it then devolves upon the shipper to establish the negligence of the carrier, failing in which he cannot recover. Such is the rule in the courts of the United States, of Pennsylvania, of New York, Louisiana, Missouri, and probably of other States. Clark v. Barnwall, 12 How. 279 ; Transportation Co. v. Downer, 11 Wall. 129 ; Patterson v. Clyde, 67 Pa. St. 500; Colton v. Railroad, Id. 211; Lamb v. Railroad, 46 N. Y. 271; Cochran v. Dismore, 49 N. Y. 249 ; Steers v. Steamship Co., 57 N. Y. 1; Read v. Railroad Co., 60 Mo. 199 ; N. O. Ins. Co. v. Railroad Co., 20 La. An. 302 ; 24 La. An. 100.
On the other hand it is said by Mr. Greenleaf, and it is held in a number of the States, that under such contracts the burden is upon the carrier to show not only the loss by the excepted cause, but also that he himself was free from fault. 2 Greenl. on Ev., sect. 219; Swindler v. Hilliard, 2 Rich. 286 ; Baker v. Brinson, Id. 201 ; Graham v. Davis, 4 [1014]*1014Ohio St. 362; United States Express Co. v. Blackman, 28 Ohio St. 144; Berry v. Cooper,
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Coopek, J.,
delivered the opinion of the court.
The question whether a common carrier may, by special ■contract, secure exemption from his common-law liability as insurer of goods where the loss or injury results from his own negligence, has been • differently answered by the courts of the different States. Those of New York, following the English decisions, hold that he may contract for immunity even as against the gross negligence of himself or servants. Smith v. C. R. R., 24 N. Y. 222 ; Magnin v. Dismore, 56 N. Y. 168 ; Mynard v. R. R., 7 Hun, 399.
In some of the States a distinction is drawn between gross [1011]*1011negligence, as to which protection by contract is not allowed, and slight or ordinary negligence from the effects of which immunity may be gained by agreement. Hutchinson on Car., •sect. 260, and authorities thei’e cited.
In this State it is settled that a contract by which a common ■carrier stipulates for exemption from liability for losses occurring from his own negligence of any grade is against public policy and void. Whitesides v. Thurlkill, 12 Smed. & M. 599 ; Express Co. v. Moon, 39 Miss. 822 ; R. R. Co. v. Weiner, 49 Miss. 725 ; R. R. Co. v. Faler, 58 Miss. 911.
In R. R. Co v. Faler it was said that it was negligence per se for a railroad company to transport so inflammable a material as cotton on an open, unprotected car. In that case the shipper had agreed to take upon himself the risk of loss by fire, but had not agreed that the cotton might be carried on open cars. In this case there was an express contract by which the shipper agreed, in consideration of a reduction in freights, that the cotton might be so transported and that he ■would carry the risk of loss by fire. Whether the carriage of 'Cotton on open cars is negligence in the sense that even by ■contract immuuity may not be secured by the carrier against ■loss, or whether it is only a less safe means of transportation which the carrier may not employ without the assent of the shipper, but by contract with him may acquire the right to use, and free himself from liability for loss arising from such course of shipment where there is no negligence on the part of the carrier, we do not find it now necessary to decide, as this case was tried in the court below upon the theory that the special contract was valid.
The instructions given by the court below on the application ■of the plaintiffs were objected to by the defendant, and are .assigned as error here.
By the fifth instruction for the plaintiffs the court ■charged the jury that “ it was the duty of the defendants to take due- precaution to protect the cotton from loss by fire, and to provide all such suitable means and appliances to prevent said cotton from catching fire and then for [1012]*1012extinguishing it if it should catch, and in considering the question as to whether the defendants did this, the jury will take into consideration the character of the cotton as to whether inflammable and combustible, and its liability to ignite, and if they find that such reasonable precautions were not taken, and the cotton was destroyed by fire by reason of defendant’s failure to provide such appliances or take such precautions, then 'the defendant is liable, notwithstanding the special contract.” Other instructions were given announcing practically the same proposition. It is now argued by the appellant’s counsel that the effect of this instruction was to deprive the defendant of the privilege it had acquired to trans port the cotton on open cars, because, as is said, the “ appli anees necessary to prevent said cotton from catching fire,” necessarily meant some covering impervious to fire. A careful examination of the record impresses us with the conviction that this was not the construction put upon these words on the trial in the lower court. It was there assumed that the special contract under which the cotton was being carried was valid, and the contract evidently contemplated a transportation of the cotton on open cars without the protection of covering. The defendant obtained an instruction that it might, by contract with the shipper, acquire the right to carry the cotton on flat cars, and another that “ if the plaintiffs agreed with defendant for a consideration, that the defendant might transport the cotton on flat cars, then plaintiffs assumed all the risks to which cotton thus shipped was ordinarily exposed, after due care, caution and protection on the part of the carrier.” The court also refused an instruction asked by the plaintiffs, in which it was announced that it was negligence on the part of the carrier to carry the cotton on any other than the safest vehicle in use for carrying the particular property. From these instructions it appears to us that if the plaintiffs had in argument to the jury or otherwise attempted to construe the instruction given for them as requiring the defendant to cover the cotton, an additional and qualifying instruction would [1013]*1013have been asked by the defendants. It appears that a rale of the defendant required buckets of water to be carried on each flat car loaded with cotton and that when the cotton which was burned near Winona was discovered to be on fire there were no such buckets on the car. In view of the character of the instructions given, and of this testimony, we must assume that this water was “ the appliance ” to prevent the firing of the cotton, the absence of which was pointed on by counsel for the plaintiffs. Viewed in this light, the instruction was not erroneous.
The court, on the application of the plaintiff, also instructed the jury that it devolved on the defendant to prove not only that the loss occurred by the excepted cause under the special contract, but also that such loss by such was without negligence on the part of defendant or its employees. This is also assigned for error. Where goods are received for transportation by a common carrier, under a special contract by which his common-law liability as insurer is limited, it is held by a number of courts (in fact by a majority of them), that the carrier, having proved the loss to have occurred by reason of the excepted cause, it then devolves upon the shipper to establish the negligence of the carrier, failing in which he cannot recover. Such is the rule in the courts of the United States, of Pennsylvania, of New York, Louisiana, Missouri, and probably of other States. Clark v. Barnwall, 12 How. 279 ; Transportation Co. v. Downer, 11 Wall. 129 ; Patterson v. Clyde, 67 Pa. St. 500; Colton v. Railroad, Id. 211; Lamb v. Railroad, 46 N. Y. 271; Cochran v. Dismore, 49 N. Y. 249 ; Steers v. Steamship Co., 57 N. Y. 1; Read v. Railroad Co., 60 Mo. 199 ; N. O. Ins. Co. v. Railroad Co., 20 La. An. 302 ; 24 La. An. 100.
On the other hand it is said by Mr. Greenleaf, and it is held in a number of the States, that under such contracts the burden is upon the carrier to show not only the loss by the excepted cause, but also that he himself was free from fault. 2 Greenl. on Ev., sect. 219; Swindler v. Hilliard, 2 Rich. 286 ; Baker v. Brinson, Id. 201 ; Graham v. Davis, 4 [1014]*1014Ohio St. 362; United States Express Co. v. Blackman, 28 Ohio St. 144; Berry v. Cooper, 28 Ga. 543 ; Steele v. Townsend, 37 Ala. 247; Grey v. Mobile Co., 55 Ala. 387 ; Brown v. Adams Express Co., 15 W. Va. 812.
And such would seem to be the rule in Connecticut and Illinois. Harper Bros. v. Railroad Co., 37 Conn. 272 ; Dunspeth v. Wade, 3 Ill. 285. The doctrine that the burden of proof under such circumstances is upon the plaintiff to establish negligence first found expression in the courts of the United States in the case of Clarke v. Barnwell, which was decided by a divided court. The rule there announced has, however, been uniformly adhered to by the courts of the United States and has been, adopted by those of many of the States.
When- first announced it was apparently based upon the proposition that by the contract the carrier ceased to be a common carrier and became a simple bailee for hire. Iu Lamb, v. Railroad Co., 46 N. Y., Grover, J., in delivering the opinion of the majority of the court, said: “The defendant was exonorated from all liability as carrier for a loss by the destruction of the cotton by fire. Relieved of this responsibility it was liable only, in case it was destroyed, as bailee for hire.” In York Co. v. Central Railroad, 3 Wall. 107, Mr. Justice Field said : “By the special agreement the carrier became in reference to the particular transaction an ordinary bailee and private, carrier for hire.” But an ordinary bailee or private carrier may, by special contract, regulate the degree of dilligence which shall be required of him. The next step, therefore, taken by common carriers was in the direction of contracting against their negligence or misfeasance as a private carrier might do. That they might do this necessarily and logically followed from the principles announced. But the courts took alarm when they contemplated the results, and denied that a common carrier could by contract exempt himself from losses occurring from his own negligence. To do this it was necessary to decide that by such [1015]*1015contract a common carrier could not divest himself of his character as such and become an ordinary bailee or private carrier for hire. In Railroad Company v. Lockwood the point was presented, and the court, in deciding the case, said : “ It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character and becomes an ordinary bailee for hire, and therefore may make any contract he pleases. That is, he may make any contract whatever, because he is bailee, and he is an ordinary bailee because he has made the contract. We are unable to see the soundness of this reasoning. It seems to us more accui’ate to say that common carriers are such by reason of their occupation, not by virtue of the responsibilities under which they rest. * * * The theory occasionally announced, that a special contract as to the terms and responsibilities of a common carrier changes the nature of the employment is calculated to mislead. The responsibilities of a common carrier may be reduced to those of any ordinary bailee for hire, whilst the nature of his business renders him a common carrier still.” In support of this principle the court relies on the case of Davis v. Graham, 2 Ohio St. ; Graham v. Davis & Co., 4 Ohio St.; Swindler v. Hilliard, 2 Rich. ; Baker v. Brinson, 9 Rich., and Steele v. Townsend, 37 Ala., hereinbefore cited, in each of which cases it was distinctly decided that a common carrier did not, by reason of a special contract, lose his character as such, and because he did not, that the burden remained on him of showing, in case of loss, not only that the loss occurred by reason of the excepted cause, but also that it happened without any fault on his part. As was said in these cases, the law which forbids a common carrier to contract for immunity against loss arising from his own negligence, practically inserts, as if written in the contract after each stipulation for exemption the words, “ Provided such loss occurs without any negligence of the carrier or his agents.” Any loss, therefore, which occurs in any other manner than by the [1016]*1016excepted cause and without the fault of the carrier, is not within the terms of the contract. It is u familiar rule, both of pleading and. evidence, -.that a half defence is no defence, and this it would seem would cast upon the common carrier the necessity .to plead, and to sustain by proof all the facts necessary to his exoneration. If, on the contrary, the rule announced by the Supreme Court of the United States is to govern, and, if as was said in Railroad Company v. Lockwood, the common carrier does not, by reason of the special contract, become a mere bailee or private carrier, as it was said in York v. Railroad Company that he did, then the question arises, what degree of negligence is the shipper-required to show? If the “ responsibility ” of the carrier is only that of a bailee or private carrier for hire, it would, it seems,be necessary for the shipper to show such negligence or want of care as would render liable a bailee or private carrier for hh;e ; while on the other hand, if the “ nature of his employment ” (that of a common carrier) is the test of diligence and care required of him, then it would seem that the plaintiff should recover upon proof of an absence of that care and diligence which is required of a common carrier. In escaping from one difficulty we would thus encounter another equally perplexing. To us it also seems that public policy forbids the further relaxation of the principles of the common law governing common carriers. It is no uncommon thing in this age to see under one management a line of railroads extending from the lakes of the north to the Gulf of Mexico, or from the Atlantic to the Pacific ocean. To hold that a shipper in New York or Chicago shall be required to establish the negligence of the carrier by proof of the circumstances of afire in California or New Orleans, would in a great number of cases result in a verdict for the carrier, even though there was in fact negligence. In a large majority of cases the facts rest exclusively in the knowledge of the employees, whose names and places of residence are unknown to the shipper. In many cases the witnesses are the employees whose negli-[1017]*1017gencehas caused the loss, and if known to the shipper it may be dangerous for him to rest his case upon their testimony, since the natural impulses of mankind would sway them in narrating the circumstances to palliate their fault by stating the occurrence in the most favorable light to'themselves. All the authorities 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 that rule governing the production of evidence which requires the facts to be proved by that party in whose knowledge they peculiarly lie.
The judgment is affirmed.