BROWN, Associate Justice.
From the statement of the case and of the evidence made by the honorable Court of Civil Appeals, we make the following extract:
“This action was for damages for cotton consumed by fire near Davis, La., while in the carrier’s hands under a contract for transportation from Detroit, Texas, to Darlington, R. I., said shipment to be via New Orleans, La., and the Cromwell line. The evidence introduced by defendant was to the effect that the cotton was compressed at Clarksville and was in good order when placed in the box car there; that the doors of this car were sealed up and cleated; that it left the compress under the compress seal, which was A. 61. (Com.) The conductor who had charge of the cotton from Clarksville to Texarkana testified that the doors of the car were closed, cleated, and sealed and securely fastened, and that it was not in any way exposed to fire while in his possession. The same in substance was testified to by defendant’s conductors, viz: J. B. Strode, who handled the cotton from Texarkana to Marshall on December 12, 1897; W. V. Brown, conductor from Marshall, Texas, to Boyce, La., December 14, 1897, and W. D. Barksdale, the conductor from Boyce to Davis, La., in whose possession the car was when discovered to be on fire on December 16th. The cotton left * Clarksville on December 9th, making seven days out before the cotton was observed to be on fire. The testimony of Barks-dale was - that the fire was first noticed from smoke coming through the top of the car at a point about a mile and a half east of Davis, which (is) about nineteen miles this side of Hew Orleans and 180 miles from Boyce; that there were no breaks or cracks visible in the car, that it was cleated and sealed by seals (A. 61 Com.), and that there were no alterations in the seals during the time he had the car. There were forty cars
on
this train and this
car
was the thirty-second from the engine.
“Strode testified that on his train from Clarksville to Texarkana the car was the tenth from the engine and that the cotton was not exposed to fire in any way while on his run, and that fire could not have reached the cotton in the ear, as it was sealed and cleated. The
other conductors testified substantially the same, and testified to the carefulness and competency of their respective engineers. Van Hees, the engineer on Barksdale’s train, testified as to his engine and spark arrester, etc., being perfect appliances, and that the engine threw no sparks, and this was also in effect the testimony of the other engineers handling the cotton after it left Clarksville; and each testified that nothing happened to the cotton while on his train. That the several engines that had been used on the trip were in good condition as to appliances for arresting sparks was testified to, as were all engines of defendant in use between Clarksville and Texarkana and Texarkana and Marshall, Texas, and Marshall and Boyce, La.”
The contract of shipment contained the following stipulation: “That neither the Texas & Pacific Railway Company nor any connecting carrier handling said cotton shall be liable to damages to or for destruction of the said, cotton by fire, * * * nor for any ioss thereof or damages thereto by causes beyond its control.”
“The court directed the jury to return a verdict for plaintiff for the amount which the parties had agreed should be found, if defendant was liable. The charge gives us the benefit of the judge’s view of the law of the case. He told the jury in substance that by the uncontroverted evidence all the facts were shown which were necessary to entitle plaintiffs to recover, unless the fire was not caused by defendant’s negligence; that the burden of proof was on defendant to show this; that there was no proof as to what caused the fire, and that while defendant may have exercised due care in the particulars in respect to which its testimony relates, it is impossible to say that defendant has shown that the fire was not occasioned by its negligence when there is no proof as to what did cause the fire; therefore, you are instructed to return a verdict for plaintiff.”
A verdict was returned for the plaintiff and judgment entered in accordance therewith, which was affirmed by the Court of Civil Appeals.
Article 320 of the Revised Statutes reads as follows: “Railroad companies and other common carriers of goods, wares, and merchandise, for hire,- within this State, on land or in boats or vessels on the waters entirely within the body of this State, shall not limit or restrict their liability as it exists at common law, by any general or special notice, or by inserting exceptions in the bill of lading or memorandum given upon the receipt of the goods for transportation, or in any other manner whatever, and no special agreement made in contravention of the foregoing provisions of this article shall be valid.” The article quoted purports, by its language, to apply only to such carriers as are engaged “in carrying goods, wares, and merchandise for hire within this State,” and does not prohibit carriers of interstate commerce from limiting their common law liability. Railway v. Sherwood, 84 Texas, 133. In the case cited, this court held, upon construction of the language itself, that it did not embrace trans
portation such as is involved in the case now before the court, and it is unnecessary for us to extend the discussion'of the subject.
The clause of the contract by which the liability of the carrier was limited not being within the terms of the statute, the right of the shipper to recover for the loss depends upon the common law, which prohibits a carrier from making terms which will exempt it from liability for the negligence of itself or its servants. The limitation upon its liability being lawful, the plaintiff in error is not liable if the loss occurred from any of the causes named in the exception without negligence of itself or servants. If, however, the loss occurred from the negligence of the railroad company or of its servants, then it is liable, and we come to the question which was determined in Railway v. Manufacturing Company, 79 Texas, 28, in this language: “Upon whom rests the burden of proof to show that the loss did or did not occur through negligence of the carrier?
“This question was settled in the case of Ryan v. Railway, 65 Texas, page 13, in which it was held that the burden of proof was on the carrier not only to show that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care.” Railway v. Manufacturing Co., 79 Texas, 28.
It is not denied by the plaintiff in error that the burden rested upon it to establish the defense, but the court assumed that the evidence which it produced was not sufficient to entitle the defendant to have the issue submitted and instructed the jury to find for the plaintiff. We are of opinion that if the issue had been given to the jury and had been found for the railway company, this court could not have held that there was no evidence to sustain the verdict. The law does not require a railroad compan}r, in defending itself under such a contract, to exclude the possibility that the fire occurred from some cause connected with the management of its railroad, nor in fact to exclude the possibility of negligence on the part of its servants.
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BROWN, Associate Justice.
From the statement of the case and of the evidence made by the honorable Court of Civil Appeals, we make the following extract:
“This action was for damages for cotton consumed by fire near Davis, La., while in the carrier’s hands under a contract for transportation from Detroit, Texas, to Darlington, R. I., said shipment to be via New Orleans, La., and the Cromwell line. The evidence introduced by defendant was to the effect that the cotton was compressed at Clarksville and was in good order when placed in the box car there; that the doors of this car were sealed up and cleated; that it left the compress under the compress seal, which was A. 61. (Com.) The conductor who had charge of the cotton from Clarksville to Texarkana testified that the doors of the car were closed, cleated, and sealed and securely fastened, and that it was not in any way exposed to fire while in his possession. The same in substance was testified to by defendant’s conductors, viz: J. B. Strode, who handled the cotton from Texarkana to Marshall on December 12, 1897; W. V. Brown, conductor from Marshall, Texas, to Boyce, La., December 14, 1897, and W. D. Barksdale, the conductor from Boyce to Davis, La., in whose possession the car was when discovered to be on fire on December 16th. The cotton left * Clarksville on December 9th, making seven days out before the cotton was observed to be on fire. The testimony of Barks-dale was - that the fire was first noticed from smoke coming through the top of the car at a point about a mile and a half east of Davis, which (is) about nineteen miles this side of Hew Orleans and 180 miles from Boyce; that there were no breaks or cracks visible in the car, that it was cleated and sealed by seals (A. 61 Com.), and that there were no alterations in the seals during the time he had the car. There were forty cars
on
this train and this
car
was the thirty-second from the engine.
“Strode testified that on his train from Clarksville to Texarkana the car was the tenth from the engine and that the cotton was not exposed to fire in any way while on his run, and that fire could not have reached the cotton in the ear, as it was sealed and cleated. The
other conductors testified substantially the same, and testified to the carefulness and competency of their respective engineers. Van Hees, the engineer on Barksdale’s train, testified as to his engine and spark arrester, etc., being perfect appliances, and that the engine threw no sparks, and this was also in effect the testimony of the other engineers handling the cotton after it left Clarksville; and each testified that nothing happened to the cotton while on his train. That the several engines that had been used on the trip were in good condition as to appliances for arresting sparks was testified to, as were all engines of defendant in use between Clarksville and Texarkana and Texarkana and Marshall, Texas, and Marshall and Boyce, La.”
The contract of shipment contained the following stipulation: “That neither the Texas & Pacific Railway Company nor any connecting carrier handling said cotton shall be liable to damages to or for destruction of the said, cotton by fire, * * * nor for any ioss thereof or damages thereto by causes beyond its control.”
“The court directed the jury to return a verdict for plaintiff for the amount which the parties had agreed should be found, if defendant was liable. The charge gives us the benefit of the judge’s view of the law of the case. He told the jury in substance that by the uncontroverted evidence all the facts were shown which were necessary to entitle plaintiffs to recover, unless the fire was not caused by defendant’s negligence; that the burden of proof was on defendant to show this; that there was no proof as to what caused the fire, and that while defendant may have exercised due care in the particulars in respect to which its testimony relates, it is impossible to say that defendant has shown that the fire was not occasioned by its negligence when there is no proof as to what did cause the fire; therefore, you are instructed to return a verdict for plaintiff.”
A verdict was returned for the plaintiff and judgment entered in accordance therewith, which was affirmed by the Court of Civil Appeals.
Article 320 of the Revised Statutes reads as follows: “Railroad companies and other common carriers of goods, wares, and merchandise, for hire,- within this State, on land or in boats or vessels on the waters entirely within the body of this State, shall not limit or restrict their liability as it exists at common law, by any general or special notice, or by inserting exceptions in the bill of lading or memorandum given upon the receipt of the goods for transportation, or in any other manner whatever, and no special agreement made in contravention of the foregoing provisions of this article shall be valid.” The article quoted purports, by its language, to apply only to such carriers as are engaged “in carrying goods, wares, and merchandise for hire within this State,” and does not prohibit carriers of interstate commerce from limiting their common law liability. Railway v. Sherwood, 84 Texas, 133. In the case cited, this court held, upon construction of the language itself, that it did not embrace trans
portation such as is involved in the case now before the court, and it is unnecessary for us to extend the discussion'of the subject.
The clause of the contract by which the liability of the carrier was limited not being within the terms of the statute, the right of the shipper to recover for the loss depends upon the common law, which prohibits a carrier from making terms which will exempt it from liability for the negligence of itself or its servants. The limitation upon its liability being lawful, the plaintiff in error is not liable if the loss occurred from any of the causes named in the exception without negligence of itself or servants. If, however, the loss occurred from the negligence of the railroad company or of its servants, then it is liable, and we come to the question which was determined in Railway v. Manufacturing Company, 79 Texas, 28, in this language: “Upon whom rests the burden of proof to show that the loss did or did not occur through negligence of the carrier?
“This question was settled in the case of Ryan v. Railway, 65 Texas, page 13, in which it was held that the burden of proof was on the carrier not only to show that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care.” Railway v. Manufacturing Co., 79 Texas, 28.
It is not denied by the plaintiff in error that the burden rested upon it to establish the defense, but the court assumed that the evidence which it produced was not sufficient to entitle the defendant to have the issue submitted and instructed the jury to find for the plaintiff. We are of opinion that if the issue had been given to the jury and had been found for the railway company, this court could not have held that there was no evidence to sustain the verdict. The law does not require a railroad compan}r, in defending itself under such a contract, to exclude the possibility that the fire occurred from some cause connected with the management of its railroad, nor in fact to exclude the possibility of negligence on the part of its servants. The burden of proof means in this case, as in others, that there must he sufficient evidence introduced to justify a jury in finding a verdict in favor of the party who affirms the issue. When this burden is discharged, the carrier is entitled to have the question submitted, although, under the evidence, the jury may find a verdict against it. If the law required that the carrier should prove its defense so conclusively that a jury could not find against it before the court would be allowed to submit the issue, then there could be no state of case in which such issue could be properly submitted on the evidence of the carrier alone, for if the evidence was not sufficient to permit the submission, the court must direct the jury to find for the plaintiff. On the other hand, if the evidence should be so conclusive that the jury could not find to the contrary, then there would be nothing to submit to the jury and it would be the duty of the court to instruct them to find for the defendant. When the question of fact has been so evolved in the evidence as to call for its submission to the jury, the court has no control over it
until the verdict has been rendered. It may be more difficult for the defendant to meet the requirements of the law by proof in this class of cases than in.others, but the same rules must govern the trial court in the submission or withdrawal of such issues from the jury.
The District Court erred in the charge given to the-jury by which it withdrew from them the issue of negligence on the part of the plaintiff in error, and the Court of Civil Appeals erred in affirming the judgment of the District Court. It is therefore ordered that the judgments of the District Court and of the Court of Civil Appeals be reversed and that this cause be remanded.
Reversed and remanded.