Gboveb, J.
Concurring in the following conclusions arrived at in the opinion of Peokham, J., I shall not add anything to his discussion of them. These conclusions are: First. That the defendant was relieved from liability as carrier for the loss of the cotton by fire, under the contract made by the shippers for its transportation, with the Illinois Central Railroad Company at Cairo. Second. That it is to be assumed, from the evidence, that Warrack, named in the bill of lading as consignee at Chicago, was the agent of the Illinois Central Company, and not the agent of the plaintiffs; that as such agent of the company, he had power to enter into a contract with the Union Transportation Company, for the transportation of the cotton from Chicago to Hew York, and to provide in such contract, for the exemption of all the subsequent carriers from liability for loss happening by fire, for the reason that the Ulinois Central had the power to contract for the transportation of the cotton upon such terms, by virtue of its contract with the shippers at Cairo, but had no power to bind the plaintiffs by any stipulation not embraced in that contract; and that consequently, the plaintiffs were not bound by the stipulation in the contract made by him with the Union Company, that in case of loss, the latter should be liable only for the value of the property at the time of shipment. Third.
That the exemption of liability from loss happening from fire, did not exonerate the company from liability for loss so happening, in case the fire causing it, resulted from the negligence of the defendant or its employes; that none of the exceptions of the defendant to that portion of the charge, relating to the reasonableness of the time for the removal of the cotton, after it was landed by the defendant in Hew York were well taken. It was proved by the defendant, that the cotton in question was destroyed by fire, while in a shed upon the dock of the defendant, where it had been placed by the defendant. The question was made upon the trial, whether this proof, of itself, constituted a defence to the action, or whether the defendant was bound to go further, and show that it and its employes were free from all negligence in the origin and progress of the fire, or whether it was incumbent upon the plaintiffs, to maintain the action, to prove that the fire causing the loss resulted from such negligence, in other words, whether the plaintiff was bound to prove that the fire causing the loss, resulted from the negligence of the defendant, or the latter was, in the first instance, bound to prove itself free from all negligence in that respect. In considering this question, it must be borne in mind, that it has already been determined, that the defendant was exonerated from all liability as carrier, for a loss caused by the destruction of .the cotton by fire, by an express provision of the contract in pursuance of which it transported the cotton. Relieved of this responsibility, it was liable only, in case it was so destroyed, as bailee for hire; and it is undisputed, that such a bailee is liable for the loss of the property only in cases where the loss is the result of his negligence. The question is, whether in case of loss by a bailee for hire, the bailor can recover upon simple proof of loss, unless the bailee shall prove' that he was free from all negligence contributing to such loss, or whether the bailor must go further, and prove that the loss was caused by the negligence of the bailée. I believe this to be a fair statement of the question between the parties to the present action; and yet so stated, no one will hardly insist, that the bailor can recover without affirmatively
proving, that the loss was caused by the negligence of the bailee. The decisions are numerous to this effect, based upon the familiar principle that negligence, being a wrong, will not be presumed, but must be proved by the party charging it and seeking a recovery founded thereon. I shall cite a few only.
(R. R. Co.
v.
Reeves,
10 Wall., 176;
N. J. Steam Nav. Co.
v.
The Merchants’ Bank,
6 How. U. S., 344;
Newton
v.
Pope,
1 Cow., 109;
Schmidt
v.
Blood,
9 Wend., 268;
French
v.
The Buff., etc., R. R.,
decided by the Court of Appeals, 4 Keyes,* 108.) Some of these were cases of loss by carriers, proved to have been from causes for which they were not liable as carriers; others where the loss was by other bailees. To these might be added other cases in the Supreme Court of the United States, in the courts of this and other States, and in England; but.it is unnecessary. Cases may occur, where the proof of the loss and circumstances connected therewith, may show a case of presumptive negligence in the defendant, such as will entitle the plaintiff to recover upon that ground, in the absence of farther proof. To illustrate: A passenger upon a railroad, receiving an injury caused by the cars running off the track, may rely upon the fact that they did rim off as evidence of negligence; nevertheless, the
onus
is upon him of establishing to the satisfaction of the jury, that his injury was caused by the negligence of the defendant; and, unless he satisfies the jury, affirmatively, of this fact from all the evidence, he is not entitled to recover.
(Curtis
v.
The Rochester etc. Railroad,
18 N. Y., 534.) It sometimes occurs, in' the progress of a trial, that a party holding the affirmative of the issue, and consequently bound to prove it, introduces evidence, which uncontradicted, proves the fact alleged .by him. It has, in such cases, frequently been said, that the burden of proof was changed to the other side; but it was never intended thereby that the party bound to prove the fact was relieved from this ; and that the other party, to entitle him to a verdict, was required to satisfy the jury that the fact was not as alleged by his adversary. In such eases, the party holding the affirmative is still bound to satisfy the jury.
affirmatively, of the truth of the fact alleged by him, or he is not entitled to a verdict. In the present case, to entitle the plaintiff to recover, he was bound to prove that the fire which consumed the cotton resulted 'from the negligence of the defendant. The remaining inquiry is, whether the rule requiring this was violated upon the trial, from which the defendant might have been prejudiced, after proof had been given by the defendant showing the destruction of the cotton by fire. Its counsel proposed to rest his case, reserving the right to rebut any testimony that might be adduced by the plaintiffs, tending to show that the destruction of the cotton by fire was occasioned through the defendants’ negligence or default. The plaintiffs’ counsel insisted, that the defendant was bound to prove that it had not been guilty of negligence,, and that the defendants’ case must then be exhausted. The court thereupon decided, that the burden of proof was on the defendant, to show that the destruction of the cotton by fire was not caused by negligence on its part. This was error. Although in proving the destruction of the cotton by fire, it appeared that the fire originated on a boat of the defendant laying at its dock. This was only evidence tending to show negligence of the defendant. Whether sufficient
prima facie
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Gboveb, J.
Concurring in the following conclusions arrived at in the opinion of Peokham, J., I shall not add anything to his discussion of them. These conclusions are: First. That the defendant was relieved from liability as carrier for the loss of the cotton by fire, under the contract made by the shippers for its transportation, with the Illinois Central Railroad Company at Cairo. Second. That it is to be assumed, from the evidence, that Warrack, named in the bill of lading as consignee at Chicago, was the agent of the Illinois Central Company, and not the agent of the plaintiffs; that as such agent of the company, he had power to enter into a contract with the Union Transportation Company, for the transportation of the cotton from Chicago to Hew York, and to provide in such contract, for the exemption of all the subsequent carriers from liability for loss happening by fire, for the reason that the Ulinois Central had the power to contract for the transportation of the cotton upon such terms, by virtue of its contract with the shippers at Cairo, but had no power to bind the plaintiffs by any stipulation not embraced in that contract; and that consequently, the plaintiffs were not bound by the stipulation in the contract made by him with the Union Company, that in case of loss, the latter should be liable only for the value of the property at the time of shipment. Third.
That the exemption of liability from loss happening from fire, did not exonerate the company from liability for loss so happening, in case the fire causing it, resulted from the negligence of the defendant or its employes; that none of the exceptions of the defendant to that portion of the charge, relating to the reasonableness of the time for the removal of the cotton, after it was landed by the defendant in Hew York were well taken. It was proved by the defendant, that the cotton in question was destroyed by fire, while in a shed upon the dock of the defendant, where it had been placed by the defendant. The question was made upon the trial, whether this proof, of itself, constituted a defence to the action, or whether the defendant was bound to go further, and show that it and its employes were free from all negligence in the origin and progress of the fire, or whether it was incumbent upon the plaintiffs, to maintain the action, to prove that the fire causing the loss resulted from such negligence, in other words, whether the plaintiff was bound to prove that the fire causing the loss, resulted from the negligence of the defendant, or the latter was, in the first instance, bound to prove itself free from all negligence in that respect. In considering this question, it must be borne in mind, that it has already been determined, that the defendant was exonerated from all liability as carrier, for a loss caused by the destruction of .the cotton by fire, by an express provision of the contract in pursuance of which it transported the cotton. Relieved of this responsibility, it was liable only, in case it was so destroyed, as bailee for hire; and it is undisputed, that such a bailee is liable for the loss of the property only in cases where the loss is the result of his negligence. The question is, whether in case of loss by a bailee for hire, the bailor can recover upon simple proof of loss, unless the bailee shall prove' that he was free from all negligence contributing to such loss, or whether the bailor must go further, and prove that the loss was caused by the negligence of the bailée. I believe this to be a fair statement of the question between the parties to the present action; and yet so stated, no one will hardly insist, that the bailor can recover without affirmatively
proving, that the loss was caused by the negligence of the bailee. The decisions are numerous to this effect, based upon the familiar principle that negligence, being a wrong, will not be presumed, but must be proved by the party charging it and seeking a recovery founded thereon. I shall cite a few only.
(R. R. Co.
v.
Reeves,
10 Wall., 176;
N. J. Steam Nav. Co.
v.
The Merchants’ Bank,
6 How. U. S., 344;
Newton
v.
Pope,
1 Cow., 109;
Schmidt
v.
Blood,
9 Wend., 268;
French
v.
The Buff., etc., R. R.,
decided by the Court of Appeals, 4 Keyes,* 108.) Some of these were cases of loss by carriers, proved to have been from causes for which they were not liable as carriers; others where the loss was by other bailees. To these might be added other cases in the Supreme Court of the United States, in the courts of this and other States, and in England; but.it is unnecessary. Cases may occur, where the proof of the loss and circumstances connected therewith, may show a case of presumptive negligence in the defendant, such as will entitle the plaintiff to recover upon that ground, in the absence of farther proof. To illustrate: A passenger upon a railroad, receiving an injury caused by the cars running off the track, may rely upon the fact that they did rim off as evidence of negligence; nevertheless, the
onus
is upon him of establishing to the satisfaction of the jury, that his injury was caused by the negligence of the defendant; and, unless he satisfies the jury, affirmatively, of this fact from all the evidence, he is not entitled to recover.
(Curtis
v.
The Rochester etc. Railroad,
18 N. Y., 534.) It sometimes occurs, in' the progress of a trial, that a party holding the affirmative of the issue, and consequently bound to prove it, introduces evidence, which uncontradicted, proves the fact alleged .by him. It has, in such cases, frequently been said, that the burden of proof was changed to the other side; but it was never intended thereby that the party bound to prove the fact was relieved from this ; and that the other party, to entitle him to a verdict, was required to satisfy the jury that the fact was not as alleged by his adversary. In such eases, the party holding the affirmative is still bound to satisfy the jury.
affirmatively, of the truth of the fact alleged by him, or he is not entitled to a verdict. In the present case, to entitle the plaintiff to recover, he was bound to prove that the fire which consumed the cotton resulted 'from the negligence of the defendant. The remaining inquiry is, whether the rule requiring this was violated upon the trial, from which the defendant might have been prejudiced, after proof had been given by the defendant showing the destruction of the cotton by fire. Its counsel proposed to rest his case, reserving the right to rebut any testimony that might be adduced by the plaintiffs, tending to show that the destruction of the cotton by fire was occasioned through the defendants’ negligence or default. The plaintiffs’ counsel insisted, that the defendant was bound to prove that it had not been guilty of negligence,, and that the defendants’ case must then be exhausted. The court thereupon decided, that the burden of proof was on the defendant, to show that the destruction of the cotton by fire was not caused by negligence on its part. This was error. Although in proving the destruction of the cotton by fire, it appeared that the fire originated on a boat of the defendant laying at its dock. This was only evidence tending to show negligence of the defendant. Whether sufficient
prima facie
to entitle the plaintiff to a verdict, is a question not necessary to decide, as no ruling thereon was made by the court. Be that as it may, the burden was still upon the plaintiffs to establish, to the satisfaction of the jury from all the evidence, that the fire was the result of the negligence of the defendant. Other evidence was given making the question of the defendants’ negligence, in respect to the fire, proper to be decided by the jury. The court, among other things, charged the jury, that, although the defendant had been freed from their ordinary measure of responsibility as insurers, they are not relieved from the burden of satisfying you that this loss, which it is beyond doubt happened by fire, was not occasioned by negligence on its part. To this the defendants’ counsel excepted. In another part of the charge the judge stated, that the real importance of the question as to reasonable time
(for the removal of the cotton by plaintiffs’ meaning), consists in this case of the fact, that down to this point of time, the burden of establishing that there was not any such negligence as I have stated rests upon the defendant. This part of the charge was excepted to. Both exceptions were well taken. The idea plainly conveyed to the jury was, that they should find for the plaintiff, unless satisfied from the evidence, that the fire was not the result of the defendants’ negligence, thus leaving them to find for the plaintiff, if unable to determine whether the fire so resulted or not, while the instruction should have been, to find for the defendant, unless they found, from all the evidence, that the fire was the result of the negligence of the defendant. The jury, after retiring to deliberate on their verdict, returned into court and made the following inquiry: Whether, if satisfied that proper precaution was not taken to prevent fire on board (the boat meaning), through the neglect to place a watchman there, they were to find for the plaintiff for the whole amount. To which the court responded, that the omission to place a watchman actually on the boat, specially charged with the duty of guarding her, might be considered by the jury on the question of negligence in the case; and if the jury found the defendants guilty of negligence, which contributed to the loss of all or any part of the cotton, etc., to find for the plaintiff for such cotton. This did not cure the error committed in the charge previously given and excepted to. In that, the judge had instructed the jury to find for the plaintiffs, unless the defendant had satisfied them, that the fire was not the result of its negligence. This was not withdrawn by the answer given to the question of the jury. Taking both together, the jury must have understood, that they were to find for the plaintiffs, if satisfied that the fire resulted from the defendant’s negligence, and that they were also to find for them, unless they found it did not so ' result. This gave the plaintiffs the verdict, if the jury were unable to find negligence in the defendant, on the ground that "they were unable to say that the proof showed that it was not negligent. Thus__in effect, -finding for the plaintiffs, without
determining the question at all, much less without finding that the fire was the result of defendant’s negligence. For the error of the charge upon this point, and in the ruling upon the trial, that the burden was upon the defendant, to show that the fire did not result from its negligence, the judgment must be reversed and a new trial ordered; costs to abide event.