The defendant insists that the lower court should have sustained its demurrer to the evidence or granted its motion for a peremptory instruction. In order to recover it was necessary for the plaintiff to prove that the defendant received the property alleged to have been injured or lost in good condition, and that when delivered to the consignee it was damaged. The fact of loss and damage is not seriously denied, but it is contended that the record does not show that the goods, when delivered to the initial carrier, were in good condition.
The bill of lading issued by the Chicago, Rock Island Pacific Railway Company at Shawnee reads that the same were received in "apparent good order," and it certainly must be construed that the goods were delivered to the connecting carrier in apparent good order, for therein the initial carrier stipulates that "in like good order to the next carrier if the same are to be forwarded *Page 659 beyond the line of this company's road (same is) to be carried to the place of destination." This certainly evidences the fact that the initial carrier, when it received same, recognized the goods as in "apparent good order" and proposed delivering same in like "good order" at the final place of destination. When the connecting carrier accepted the shipment under the through rate under said bill of lading it thereby ratified the contract of the initial carrier, which, of itself, would have constituted such initial carrier the agent of the delivering carrier. When the goods were delivered to the consignee at the place of destination, the freight not having been paid, and the consignee paying same to the delivering carrier, no liability would rest upon such consignee to the initial carrier for the freight over its line. The delivering carrier would have the right to receive such freight and retain the goods until it is paid. Regarding such carrier as the agent for the other, the bill of lading to be given by the one is evidence against the other for the purpose of showing the goods delivered, their condition at the time of delivery, and the terms of shipment. If the carrier finally delivering the goods does not deliver them in the condition in which they were received by its agent, then it must account for the injury. The burden rests upon it to show that the injury occurred without its fault or negligence. To the extent of involving it in the liability of a common carrier after the goods shall come to its custody, the initial, or receiving carrier, of the goods had such authority. The burden of proof in cases of loss or injury rests upon the carrier to exempt itself from liability, the law imposing the obligation of such duty upon it. The failure to deliver, the carrier having received the goods, makes a prima facie case of liability. It appears that the goods were received by the Chicago, Rock Island Pacific Railway Company, standing to the plaintiff in relation of agent, contracting for the plaintiff for transportation along its line and delivery at the place of destination. There was but a partial delivery of the goods. Has the plaintiff in error delivered all it received from its agent? How *Page 660 did it obtain a part and not the whole, for the whole shipment was, by virtue of one contract and one bill of lading, made and issued by the initial carrier? These inquiries could certainly have been answered by the plaintiff in error; for it certainly possessed that knowledge or information, and until, by competent evidence, it shows the delivery of all it received, the presumption must attach that the loss or damage occurred by its default. Of course, the plaintiff in error is liable only for losses or injuries on its own line, but when a loss or injury is shown, and such could have occurred while it was in custody of the goods, and there is evidence the goods were delivered to it, it must account for the loss, for the loss or injury was a fact resting peculiarly within its own knowledge. Here, the entire shipment, consisting of about 27 packages, was delivered to the initial carrier under one entire contract, and all of said packages, except 4 or 5, were delivered to plaintiff at the place of consignment, but several of them in a damaged condition. How easy it would have been for the defendant to have shown that it did not receive all of those packages from the initial carrier, and, further, that those which it did receive were delivered to the consignee in the original condition when received from the initial carrier and by this means have discharged itself from liability? But the plaintiff in error stands upon the technical position that these goods which were shipped over the defendant's line from Sapulpa to the connecting point of the Chicago, Rock Island Pacific Railway Company in transit to Shawnee might have been injured and damaged in that transit, notwithstanding the fact that the witness Mrs. Dixon, to whom these goods were consigned at Shawnee, testified that when received there they were in apparent good condition; that they were properly stored; and that when they were redelivered to the initial carrier for the last shipment they were in apparent good condition, and the initial carrier so recited in its bill of lading, Now, certainly these four or five packages were not lost in transit from Sapulpa to Shawnee, but were from Shawnee to Cordell. The delivering carrier in *Page 661 accepting this shipment from its agent, the initial carrier, because it was an entire shipment, is presumed to have received the entire shipment. If it did not, it had it within its power on the trial of this cause to have introduced proof to that effect. The law places that burden upon it. Both reason and authority sustain this presumption. The very uncertainty as to where the goods were or on whose line located, when damaged or lost, and the difficulty of ascertaining those facts by the consignor or consignee, renders this rule necessary. The carrier, almost without exception, will be able to show the condition of the property when reaching its custody; the shipper or consignee can rarely, if ever, do so. This is a salutary rule, resulting in justice to the greatest number affected; leaving it also to the party to prove the fact in whose power it expressly lies. In addition to that, one of these packages or boxes when delivered to the plaintiff had been broken and the syrups run out. Upon examination this injury would have been necessarily obvious. The initial carrier is presumed to have made a reasonable examination, and if it had made such examination it would have discovered such condition of the packages shipped if, when they were delivered to it at Shawnee, they were in the same condition that they were in when delivered at Cordell. There was ample proof in this record to submit the issues to the jury. SouthernExpress Co. v. Hess, 53 Ala. 19; Dixon v. Richmond DanvilleR. R. Co., 74 N.C. 539; Illinois Central R. R. Co. v. Cowles,32 Ill. 117; Savannah, Florida Western R. R. Co. v. Harris,26 Fla. 148, 7 So. 544, 23 Am. St. Rep. 551; Gulf, Colorado Santa Fe R. R. Co. v. Jones, 1 Ind. T. 354, 37 S.W. 208; Hutchinson on Carriers (3d Ed.) vol. 3, § 1352; 6 Cyc. 490, 491, and authorities cited in footnote 40; Am. Digest (Century Ed.) vol. 9 pp. 743-750.
Plaintiff in error refers to the case of Missouri Pacific Ry.Co. v. Breeding, 16 S.W. 184, decided by the Texas Court of Civil Appeals, wherein it is said:
"Unless it appears from the evidence that the machine claimed *Page 662 to have been injured was delivered to the defendant company or some connecting line of railroad in condition other than it was in when delivered at Rockdale, you may presume the defendant did its duty, and delivered the machine in the condition it was in when received."
Now, in this record, it appearing that the initial carrier receipted for these goods as in "apparent good order," the carrier is presumed to have done its duty and to have examined these packages, and after such reasonable examination the recital is made in the bill of lading that the packages were in apparent good order. The testimony on the part of the plaintiff, by the person who handled these goods, is that at the time of shipment from Shawnee to Cordell they were in apparent good order. Of those packages that reached their final destination one had been broken in. By inspection that could have been discovered; and the bottles in others were broken and the liquids running out. Likewise, by reasonable inspection, that could have been and was discovered. Some of the packages of that whole shipment never reached their destination. Where the evidence in a case leaves it doubtful whether the particular carrier who is sued for the loss of goods, or another from whom that carrier received the same, is liable, the Supreme Court will not disturb the finding of the jury.Illinois Central Railroad Co. v. Cowles, 32 Ill. 117.
The provisions in the rate bill as to the issuing of bills of lading by the initial carrier and liability for loss has no application to this case. Act June 29, 1906, c. 3391, § 7, 34 Stat. 595 (U.S. Comp. St. Supp. 1907, p. 909), First Session, Fifty-Ninth Congress, 1905-6.
There appearing no reversible error in the record, the judgment of the lower court is affirmed.
All the Justices concur. *Page 663