Smith v. North Carolina R. R.

64 N.C. 235

Opinion

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 known 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 in 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.