The cause of action was, the loss by fire of nineteen bales *Page 184 of cotton belonging to the plaintiffs, whilst being transported by the defendant in 1866.
Upon the trial it was shown that the engines used by the defendant were not prepared for transporting cotton, not being furnished with the "spark-arresters" which are in use to prevent fire; that the company had a regulation, at the time of, and for nine months before, the fire in question, by which it engaged to transport cotton at half the usual rates of freight, upon consideration that the owner would relieve it from risks on account of fire; and that the agent, who contracted for the owner to ship that cotton (as he had some 2,000 other bales, since the summer of 1865), had a special understanding with the company at the time of shipping, that it should not be liable for such risks; also, that half rates were paid upon it. It was also shown that the cotton was destroyed by fire, whilst being transported by the company, near Charlotte, from which point it had been shipped.
No further report of the facts is necessary for the understanding of the Opinion.
Both parties asked for certain instructions, and the court declined to give them.
Among those asked by the defendant, was this: That, upon the evidence, there was no negligence upon the part of the defendants.
Among the instructions given by his Honor, was this: That (237) it devolved on the defendant to show ordinary care, if the fact was found that the damage was occasioned by its act.
Verdict for the plaintiff, etc., Judgment and Appeal. 1. Public carriers may limit their peculiar liability, Pars. Cont., 1,703 and n. d. Story Bailm. § 549, Pierce, R. R.'s 420.
2. If so limited, they are not responsible for want of ordinary care, but only for gross negligence, Story Bailm. § 570 etc., 2 Green. Ev. § 218.
3. The burden of proof in regard to care, was upon the plaintiff. Story Bailm. 573 etc. Angell, Carriers, § 61 n. 5, § 276, 2 Green. Ev. § 8. The questions involved in this case are of such general interest, and so frequently arise, and it is so important that there should be 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 such as result from the act of God or the public enemy, we find the (238) following corollaries or variations thereof well established:
1. They cannot by general notice, free themselves from liability; as for example, by a general notice of "All baggage at owner's risk." The owner may disregard such notice; and the baggage, notwithstanding the notice, will be at the risk of the carrier. But they may, by notice brought to the knowledge of the owner, reasonably qualify their liability — as, if the notice be, that they will not be liable for glass in a box, or for articles of unusual value, unless informed of the facts.
2. They may, by special contract, be relieved from their peculiar liability as common carriers; as by that in the case before us, That they will not be liable for loss from fire.
3. When they are relieved as above, by special contract, they are still bound to ordinary care, notwithstanding the special contract.
4. When there is such special contract, the burden of proving the want of ordinary care, or what is the same thing, of proving negligence, is upon the owner.
5. When the facts are agreed upon, or otherwise appear, what is ordinary care, is a question for the court. When the facts are in dispute, the proper course for the Judge is, to explain what would be ordinary care under certain hypotheses as to facts, and leave the jury to apply the law to the facts as they may find them.
In the case before us, it appears that the defendant was not prepared to transport cotton with safety, as against fire, not being provided withspark arresters, to guard against this danger. Hence the stipulation for afire release was taken. The plaintiff must show other evidence of a want of ordinary care, to render the defendant liable for the cotton in question.
The learning upon this interesting subject, is well digested in 1 *Page 186 Pars. Cont., 1, 704, N. J. Steam Nav. Co. v. Merchant's Bank, (239) 6 Howard 344.
There is error.
Per curiam.
Venire de novo.
Cited: Bryan v. Fowler, 70 N.C. 598; Capehart v. R. R., 81 N.C. 444;Pleasants v. R. R., 95 N.C. 203; Wallace v. R. R., 98 N.C. 498; Emry v.R. R., 109 N.C. 592; Mason v. R. R., 111 N.C. 498; Mitchell v. R. R.,124 N.C. 248; Miller v. R. R., 128 N.C. 27; Thomas v. R. R., 131 N.C. 591;Extinguisher Co. v. R. R., 137 N.C. 283; Kime v. R. R., 160 N.C. 461.