The defendants are not, by the contract of carriage, to be responsible for a loss by fire, unless it can be shown that it resulted from their negligence or want of care. This condition of liability was enforced in terms on the trial. The defendants were held not to be responsible, unless it satisfactorily appeared that they were guilty of negligence by which the loss was occasioned. Whether the plaintiff is to make out a yyri/ma facie case in the first instance, is not stated by the contract itself, and the natural order of proof would be for the plaintiff to show the delivery to the carrier, and his failure to carry and deliver as undertaken by him, and by way of answer to any explanation of the loss by him, to further show that it resulted from his negligence, notwithstanding the explanation.
There is nothing in the contract hostile to this form of procedure, or in conflict with it. The carrier is to be liable only for negligence resulting in loss when the loss is occasioned by fire. This is a condition imposed by him; this the limit within which he restricts the common-law liability which would otherwise exist; and when fairly considered, with reference to that common-law liability thus restricted, it means: “ Upon a fair and full consideration of all the facts attending the loss, if it appears that I was negligent, and that such negligence resulted in the destruction of your property, I will pay you the damages to be ascertained as agreed upon.”
*478It would be a severe exercise of judicial power to hold that the consignor must give evidence, not only of the cause of the loss, but the details attending it, and be also required to establish from such details the want of such care on the part of the carrier as he was called upon to exercise under his engagement in respect to the property carried. Such a duty should not be imposed, unless there can be no doubt that such was the intention of the parties, and for the reasons—
1st. That the circumstances attending the loss are more within the knowledge of the carrier, and information on the-subject more accessible to him than to the consignor; and,
2d. Because the carrier is jprima fade liable if he failed to deliver, and any limited responsibility being for his especial benefit, he should have the burden of bringing the loss complained of within the exception to his general liability.
The defendants in this case were required, in answer to the plaintiff’s demand, to bring themselves within their excepted liability, and this was a proper construction of the terms of carriage. I agree with Judge Daly, therefore, in his conclusions upon that branch of the case.
It must be said, in addition, however, that the defendants did not rest upon their proposition that the plaintiff must show them guilty of negligence. They excepted to the denial of the-motion to dismiss the complaint, it is true, but they proceeded, nevertheless, to show the cause of the fire, and all the circumstances calculated to relieve them from the charge or suspicion of negligence. The plaintiff responded to the case made by such evidence, and the issue on that subject was fairly considered, and passed upon adversely to them. The proof having thus been given on both sides, the refusal of the judge at the trial to compel the plaintiff to establish a prima fade case of negligence against the defendants resulted, and is to be regarded merely, as an inversion of the order of proof, which could not operate to the prejudice of the defendants.
The circumstances under which the fire took place, its cause and consequence, as already suggested, must be supposed to have been more within the knowledge of the defendants than the plaintiff, and the evidence on the trial shows that such supposition was entirely justifiable. Such facts and circumstances-*479would necessarily present the defence, or the conclusion based upon them, if proper, that the defendants were not guilty of negligence. It may be said in answer to this view that the plaintiff might not have been able to show that the defendants were guilty of negligence in opening his case ; but the fact that he rebutted the defendant’s case made on that subject, and was allowed to go to the jury upon the answer made to it, shows that such a conclusion could not be properly entertained. We have the whole case before us, and it does not appear that the inversion of the order of proof, assuming such an incident to have occurred, prejudiced the} defendants in any manner. They had the opportunity to present their case fully, and seem to have done so, and the jury found against them. For these reasons, and those assigned by Judge Daly on the other questions considered by him, the judgment should be affirmed.
[Subsequently, upon a reargument being had upon the question of the rule as to the measure of damages under the contract, the court reconsidered its decision on that question, with the following opinion.]
Daly, F. J. The receipt or bill of lading which the Illinois Central Railroad Company gave at Cairo is the written evidence of the contract which that company made for the transportation of the cotton, to which may be added the statement of the plaintiff, Lamb, that the agent of that company told him that it would take the cotton for two dollars per hundred pounds, and the statement of the agent himself that he made the bargain for the transportation of the cotton from Cairo to New York with the plaintiffs. The bill of lading acknowledges the receipt of the cotton by the company, consigned to James Warrack, agent, Chicago, as marked and described in the margin, and in the margin it is consigned to Sawyer, Wallace & Co., New York; and after the printed word “freight” there is in the margin this entry: “ Through rate $2 per 100 lbs.;” by which we understand through to New York, that being the place of destination.
In the body of the bill of lading it is provided that the company are not to be responsible for loss by fire, unless it occurs *480through the negligence of their agents; and further, that it is especially understood that for all loss and damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier or forwarder only in whose custody the said packages may actually be at the time of the happening thereof; it being understood that the said Illinois Central Railroad Company assumes no other responsibility for their safety or safe carriage than may be incurred on its own road.
If the word “ packages ” may be understood as embracing cotton bales, which I think it may, as cotton is among the articles previously referred to, and one of the definitions of “ package” by Webster, is a “bale,” and this bill of lading, with its qualification of the carrier’s responsibility, is to be regarded as expressing the contract which the plaintiffs or their agents entered into with the Illinois Central Railroad Company, then, in my judgment, it is very plain that the responsibility of that company as common carriers ceased when they had transported the cotton over their own road to Chicago and had delivered it into the custody of a connecting line to transport it further upon its route to its destination at New York (Detroit &c. Railway v. Farmers' Bank, 20 Wis. 122; Cincinnati &c. Railway v. Spratt, 2 Duvall, 4; Nutting v. Conn. River Railroad, 1 Gray, 502; Hunt v. N. Y. & E. Railway, 1 Hilton, 228; Penn. &c. Railway v. Schwarzenberger, 45 Penn. St. 208; Converse v. Norwich &c Co. 33 Conn. 166; Farmers' Bank v. Champlain &c. Co. 18 Vt. 140; 23 id. 209; Jenneson v. Camden &c. Railway, 4 Am. Law. Reg. 234; Fenner v. Buffalo &c. Railway, 46 Barb. 103).
Where the carrier to whom the property is delivered by the owner for transportation to a point beyond that carrier’s route, receives, or contracts to receive, the entire freight, he undertakes for its caniage and delivery at the place of destination, and the subordinate carriers are to be regarded as his agents. Having received, or contracted to receive, the whole reward, he is bound to perform the whole service, or, rather, to see that it is performed, at the peril of his liability, as a common carrier, in the event of loss. (Dillon v. N. Y. & E. Railway, 1 Hilton, 234; Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith, 115.) ,
*481If the freight for the entire route is reckoned in one sum, or a receipt is given for the entire route, or the rate for the whole route is agreed upon and fixed by the carrier who receives the property from the owner, it is prima facie evidence of an agreement to deliver it at the ultimate place of destination, but like any other presumption, may be overcome by proof that that was not the agreement (Krender v. Woolcott, 1 Hilton, 227; Angle v. Mississippi Railway, 9 Iowa, 487; Crouch v. Great Western Railway, 2 H. & N. 491; Peet v. Chicago &c. Railway, 19 Wis. 118; Weed. v. Saratoga &c. Railroad Co. 19 Wend. 535; Kyle v. Laurens Railway, 10 Rich. Law (S. C.) 382; Wilcox v. Parmlee, 2 Sandf. S. C. R. 610).
In this case, the rate for the whole route was agreed upon by the Illinois Central Railroad Company, but at the same time it was expressly provided in the same instrument that they were not to be responsible for the safety of the cotton beyond the limits of their own road. It is upon the bill of lading alone that the plaintiffs rely for the conclusion that the Illinois Central Railroad Company contracted for the carriage of the cotton to New York, as it contained the names of the consignees there, and.the words “through rate $2.00 per 100 lbs.” But if the plaintiffs rely upon the bill of lading as the evidence of the contract, they cannot adopt one clause of it and reject the rest. They must take it altogether. It is to be used as one instrument, and the contract is to be gathered from all that is contained in it; and if they reject the bill of lading, then there is nothing in the case but the common-law responsibility of the Hlinois Central Railroad Company to transport the cotton to the end of their own route and deliver it there to the next carrier for transit to the place of destination. If, then, we look into the bill of lading at all, we must, in construing the words “through rate, &c.,” give full effect to the clause in the body of the bill, that the company were not to be responsible for loss or injury beyond the limits of their own road; and if we do this, the utmost extent of the engagement of the Illinois Central Railroad Company beyond the limits of their own road was to undertake, in delivering the cotton to another carrier, that no *482greater rate should be charged for the entire transportation than had been agreed upon, which it appears they provided for, as the Chicago bill of lading which was given by the Union Transportation Company is for its transportation to New York according to the rate of $2 per hundred pounds from Cairo to New York; and it appears that the bills for freight sent by the defendants to the consignees at New York for the freight from Chicago was, accordingly, at the rate of one dollar and forty-five cents.
So far, therefore, as this company are concerned, they fulfilled their contract, both as respects the safe carriage of the cotton by them, and in providing for its transportation beyond them limits to New York at the rate agreed upon.
As by their own agreement with the plaintiffs, their responsibility as common carriers was qualified in certain particulars, it is to be inferred that they had the right to contract upon the plaintiffs’ behalf for its further transportation upon the same conditions. The plaintiffs having consented that this company might limit its responsibility, it would not lie with the plaintiffs to object that it agreed that the subsequent carrier to whom it delivered the cotton might transport it upon the same terms.
But, however this may be, it is very clear that they had no power to bind the plaintiffs by entering into other and different stipulations with the subsequent carriers, such as the one to which our attention is now specifically called, namely: that should losses occur under the bill of lading given by the subsequent carriers, the cost or value of the property at the date of shipment should govern in the settlement of the same. In the fulfillment of the further obligation which the Illinois Central Railroad Company owed to the plaintiffs in providing for the transportation of the cotton beyond the limits of their own road, the plaintiffs were entitled to all the security for the safety of their property or for the value of it in the event of its loss which the common law affords, in the extraordinary liability which it imposes upon carriers, except so far, or to the extent to which the plaintiffs had previously agreed to waive it.
It is claimed, however, by the defendants, that the contract *483with the Union Transportation Company for the further carriage of the cotton to New York was made with them by the plaintiffs’ agent, and that the plaintiffs are consequently bound by the stipulations therein contained.
They rely upon the statement in the Cairo bill of lading that the cotton was consigned to James Warrack, agent, Chicago, and insist that he was thereby made the plaintiffs’ agent or consignee at that place to provide for the further transportation of it. But the contract of the Union Transportation Company was not made with him, nor does his name appear in the bill of lading which that company gave. Their bill of lading acknowledges that the cotton was received by them, to be by them transported until it reached the point named in the bill of lading, which is stated in the margin, as follows: “Consigned to Sawyer, Wallace, & Co., New York.” The bill of lading was delivered to Warrack, and was sent by him, not to the plaintiffs, nor to Halliday Brothers, who in the Cairo bill of lading are denominated the shippers, but to the Illinois Central Eailroad Company.
Testimony was offered by the plaintiffs to show that War-rack was not their agent; that he had no authority to act for them in any respect, and that they did not know him; to all of which inquiries the defendants objected, and the Judge upon the trial excluded them, and also under the plaintiffs’ objection, a statement of the agent of the Union Transportation Company that Warrack acted at Chicago for the shippers, and guaranteed the rate of transportation, which, we suppose, means the agent of the shippers at Chicago, who were, by that bill of lading, the Illinois Central Eailroad Company. As Warrack sent the bill of lading to that company, it is fair to presume that they were his principals. It is not stated in the Cairo bill of lading whose agent he was, and if any inference is warrantable upon the whole of this testimony, it is that he was the agent of the company, and not of the plaintiffs.
Assuming then, as I think we must do, that the contract for the transportation of the cotton was- made with the Union Transportation Company by the Illinois Central Eailroad Company, and that that company had no authority from the plaint*484iffs to enter into any stipulation as to what should he the criterion of value in the event of losses thereafter, the question arises whether that stipulation is to regulate the measure of' damages in an action, not brought against the Union Transportation Company, but against the particular carrier in whose custody the property was at the time of its destruction.
It was held by Justice Nelson, in the New Jersey &c. Co v. Merchants’ Bank, (6 How. U. S. 344), that where the action is brought against an intermediate carrier, who had the custody of the property at the time of its loss, he was entitled to the benefit of a special contract made by him with the original carrier, to the effect that the property was to be carried at the original carrier’s risk, and that the intermediate carrier was not answerable for the loss unless it was shown affirmatively that it occurred from the want of ordinary care on his part; that the owner could recover against him only through the special contract which he had made, and that by bringing the action against him, the owner affirmed its provisions so far as they were consistent with the law, which would not uphold a stipulation exempting him from liability for willful misconduct, gross negligence, or the want of ordinary care.
The point that the rights of the general owner, in the event of loss, are controlled by a valid special contract between the carrier employed by him and the carrier in whose custody the1 property was lost, is to be regarded simply as dictum, not being; essential to the decision of the case, as the court held that the intermediate carrier was guilty of gross negligence, for which he was answerable to the owner, independent of the contract. It was approved, however, by Justice Duer, in Stoddard v. The Long Island R. Co. (5 Sandf. 188), though not essential either to the decision that was made in that case, and is treated by Chief Justice Redfield, upon the authority of' these two cases, in his recent work upon Carriers (§ 47), as established law.
From the high character of the court in which this dictum is found, the learning.and great experience of the distinguished Judge by whom it was pronounced, and from the approval of it in the case cited, and in the elementary work referred to, it *485is not without diffidence that I call in question its correctness; hut I do so from a strong conviction that if, instead of being assumed to be the law, the question had been examined upon the authorities, or the reasons for it had been inquired into, it would not have been so confidently expressed.
It has been repeatedly said that the extraordinary liability imposed upon common carriers by the common law has its foundation in well-considered grounds of public policy (Coggs v. Bernard, 2 L. Ray, 909; Barclay v. Gana, 3 Davy, 389; Thomas v. Boston &c. R. R. Co. 10 Met. 476 ; Hollister v. Nowlen, 19 Wend. 241; Reaves v. Waterman, 2 Spear, 206 ; 2 Kent’s Com. 602 ; Mercantile Insurance Co. v. Chase, 1 E. D. Smith, 131, 132), and this is constantly to be kept in view, whether the action is against the carrier in whose custody the property was lost, or the one with whom the contract was made.
A common carrier has certain obligations and duties imposed upon him from the public nature of his calling. In the language of Justice Nelson, in the case cited, “ he is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of thepa/rties concerned. He is bound to receive and carry all the goods offered for transportation, sub j'ect to all the responsibilities incident to his employment, and is liable to an action in case of refusal;” and this has been the law from the Year Books down. If the owner of the goods 'sees fit to waive any of the conditions which the law has imposed for his protection he may do so, and when he does, he, to that extent, divests the common carrier of his public character; or, if the agreement is, as in French v. Buffalo &c. R. R. (4 Keyes, 108), at “ owner’s risk,” he makes him in that particular transaction a private carrier, with no greater obligations than an ordinary bailee for hire (Simons v. Low, 3. Keyes, 220; Beekman v. Shouse, 5 Rawle, 119; New Jersey &c. Co. v. Merchants' Bank, 6 How. U. S. 344).
The remedy of the owner is not limited to an action against the carrier with whom he contracted, but he may sue the par'ticular carrier in whose custody and by whose negligence the *486property was lost or injured, in which case the action is not' upon the contract, but upon the obligation and duty which that carrier assumed from the public nature of his employment, and through the omission or neglect of which the injury is presumed to have occurred, unless he shows that it arose from the act of God or the public enemies (Bretherton v. Wood, 3 Bro. & Bing. 54; Green v. Clarke, 12 N. Y. 347; Cook v. Floating Dry Dock, 1 Hilt. 443; Arent v. Squire, 1 Daly, 347; Allen v. Sackridge, 37 N. Y. 342 ; Leslie v. Wilson, 3 Bro. & Bing. 171; McCall v. Forsyth, 4 Watts & Serg. 179; Sanderson v. Lambertsen, 6 Binney, 129; Poszi v. Shipton, 8 Adol.. & El. 963; Hide v. Trent Nav. Co. 1 Esp. 36; Shearman & Redfield on Negligence, §§ 14, 111, 112; Angell on Carriers, §§ 422,424, 440 ; Redfield on Carriers, §§ 40, 45; Edwards on Bailments, p. 466; 1 Selwyn’s Nisi Prius, 415, 9th ed.)
In such an action, all that it is incumbent upon the plaintiffs to show is that the property was delivered into the custody of the defendant for transportation in the ordinary course of his-employment as a common carrier, and the fact of its loss or injury, or of the failure to deliver it upon demand.
The contract which was made for its carriage forms-necessarily no part of the plaintiff’s proof, though it may be material on the part of the defendants if it qualified the first carrier’s responsibility, because the subordinate or continuing carrier should not be held to any greater obligation and duty than was required by the plaintiffs of the first. Indeed the action upon the contract is of comparatively recent origin. Anciently it was upon the obligation or duty which the common law imposes, or, as the books expressed it, upon the custom of the realm. Such was the form in the old book of entries, and the action was an action upon the-case (Hearne, 76; Brownlow Redivivus, 11; Clift. 38, 39; Mod. Int. 145; Bretherton v. Wood, 3 Bing. & Bro. 54). “ Declaration against carriers in tort,” says Bayley, J., in Ansel v. Waterhouse (2 Chitty R. 1), “ are as old as the law, and continued until Dale v. Hale (1 Wils. 281), when the practice of declaring in assumpsit succeeded, but this practice does not supersede the other.” In Dale v. Hale, the action was upon the-*487case, but the declaration was not against the defendant as a common carrier, upon the custom of the realm, but it averred that the defendant at the special instance of the plaintiff undertook to carry the goods. No negligence was shown on the part of the plaintiff, and the defendant was allowed to give evidence that he had taken all possible care of the goods, for which the verdict was set aside, upon the ground that everything is negligence on the part of a common carrier which the law does not excuse, that is, that there may be negligence, though impossible to be detected, making the carrier liable, unless the injury arose from the act of Q-od or public enemies (Angell on Carriers, § 169; Evarts v. Street, 2 Bail. S. C. 161); and one of the Judges, Denison, said that “ the declaration upon the custom of the realm was the same in effect with the declaration in that case, the old form being that the defendant suseepit, &c., which shows,” he says, “ that it is ex contractu,” an observation which gave rise to great confusion and to the impression that the action, whether it was in case or in assumpsit, was upon the contract, whereas the true rule is, that it lies independent of any contract, express or implied, upon the public obligation and duty imposed upon the carrier bylaw (Merritt v. Earle, 29 N.Y. 122); it being a general principle that where the law imposes a duty upon any one, the neglect of that duty renders him liable to any person who has been injured through the neglect of it. (See the cases collected in Cook v. N. Y. Floating Dock, 1 Hilt. 443, and Green v. Clarke, 12 N. Y. 343 ; Tattam, v. Great Western Railway, 2 El. & El. 844; Hide v. Trent Nav. Co. 1 Esp. 36 ; Shearman & Redfield on Negligence, pp. 12, 13 ; Redfield on Carriers, § 422 ; Edwards on Bailments, pp. 466, 467).
It follows, consequently, in respect to common carriers, that the action pa ay be for a breach of the contract or for a breach of the duty, and that in the one case it is an action upon the contract, and in the other an action of tort (Jeremy on Carriers, 116, 117; Angell on Carriers, § 422; Rediield on Carriers, §§ 40, 45, 412). If the action is in tort, negligence is presumed, unless the injury arose from causes which excuse the carrier, and which it is for him to show; “ for the law,” says Chief Justice Holt, in Coggs v. Bernard (2 Ld. Ray, 909), *488“ charges the person (the common carrier) thus entrusted to carry goods, against all events but the act of God and the king’s enemies,” and this applies, whether the action is upon the contract or for the neglect of the duty. It was declared by the Court of the King’s Bench, in Garside v. Trent Nav. Co. (4 T. R. 581), that wheré goods were received by a carrier to be transported to a place beyond the limits of his own route, that his extraordinary responsibility as carrier ceased at the termination of it, and that his obligation then was simply to forward them by the nearest connecting conveyance. This was a distinction well defined and easily understood ; but within the last thirty years a group of cases have been decided in England that have brought this whole subject again into confusion and revived the impression that there is no right of action in the event of loss or injury, except upon the contract. These cases (Muschamp v. Lancaster &c. Railway, 8 Mee. & Wells. 421; Scothorn v. South Staffordshire Railway, 8 Exch. 341; Collins v. Bristol &c. Railway, 11 Exch. 790; 1 Hurl. & Nor. 517 id.; 7 Ho. Lds. Cas. 194; Willy v. West Cornwall Railway, 2 Hurl. Nor. 703; Mytton v. Midland Railway, 4 id. 615; Coxen v. Great Weston Railway, 5 id. 247), taken collectively, decide that where a railway company books a package for delivery at ' a point beyond the limits of their own road, and receives the whole sum which is paid for the entire transportation, or agrees that it may be paid when the parcel is delivered at the place of destination, or their agent, when he receives it, signs a paper to the effect that it is delivered into his charge, for a person in a place beyond the limits of their road, that they are liable in their capacity as common carriers for its safe carriage, throughout the entire route, though it may be lost upon a Railroad beyond the limits of their own road to whom it has been delivered,, and with whom they may have no connection or business arrangement, even though the agent of the owner may sign a way bill declaring that the company receives the charges payable to the other companies for the owner’s convenience, and that they are not to be liable for loss or damage occurring upon other railways; or if, when it was lost upon another road, it was in a truck belonging to the company in charge of their guard, which was attached *489to the train upon the other road, though the receipt which the company gave for it specified that they would forward it beyond their own line by other carriers, whose charges, for the owner’s ■convenience, would be added to their own, and that when they did so that the delivery on their part was to be complete and their responsibility at an end. That the contract in that case was to be regarded as an entire one to carry the package to and deliver it at the place of destination, and that wherever this was the case no action could be maintained by the owner against the subordinate carrier upon whose road it was lost or injured, but that his remedy was against the company with whom the contract was made. It is proper, however, to say, in respect to the last proposition, that m the case in which it was held (Mytton v. Midland Railway, 4 Hurl. &Nor. 615; Coxen v. GreatWestern Railway, 5 id. 247, and Bristol &c. Railway v. Collins, 7 Ho. of L. Cases, 194), the action was not brought upon any public obligation and duty, but upon what must be regarded as an averment of a contract between the owner and the intermediate carrier, upon whose road the property was lost, and it may be that the extent of the ruling was that where the contract with the first carrier is for the entire route, nb aetibn upon contract can be maintained by the owner against the subordinate carrier, as it was declared by Lord Mansfield, in Forward v. Pittard (1 T. R. 27), that for a hundred years before his time upon the cases a common carrier was liable independent oí his contract; that by it he was bound to care and diligence, and liable upon it for negligence; but that there was a a further degree of responsibility by the custom of the realm or the common law by which he was held to a responsibility in the nature of that of an insurer, and it is not to be inferred that the court meant by their •decision in these cases to gainsay what was declared so positively to be the law by a judge of the eminence of Lord Mansfield.
The American courts, as a general rule, have not gone to the length of these cases in construing a common carrier’s liability. While they have rigorously held him to his common-law responsibility when the property was lost or inj ured in his custody, and, indeed, more rigidly than in the English courts, they have, at the same time, acted upon the more just and rational rule *490that his liability is prima, facie limited to the safe transportation of the property over his own route; that his obligation, then, is to forward it by the usual or most direct conveyance to the place of destination, and to store it, or otherwise to take charge of it until that can be done; that this is the extent of his obligation, though he may give a receipt or sign a bill of lading which names another and more remote point of delivery. He may contract specially for its carriage to and delivery at its final place of destination, and where he tickets it through or takes payment for the whole distance, without any qualification or reservation, it may be inferred that he has made such a contract; but otherwise, his extraordinary responsibility, and the reasons for it, continue only while it is in his own custody, and ends when it is delivered to the next carrier (Converse v. Norwich &c. Trans. Co. 33 Conn. 166; Nutting v. Connecticut &c. Railroad Co. 1 Gray, 502; Detroit &c. Railway v. Farmers' Bank, 20 Wis. 122; Weed v. Saratoga &c. Railroad Co. 19 Wend. 534; Farmers' &c. Bank v. Champlain Trans. Co. 23 Vt. 186; Van Santvoord v. St. John, 6 Hill, 157; Hood v. N. Y. &c. Railroad Co. 22 Conn. 1; Penn. Cent. Railway v. Schwarzenberger, 45 Penn. St. 208; Hunt v. N. Y. & Erne Railway, 1 Hilton, 229; Krender v. Woolcott, id. 227; Dillon v. N. Y. & Erie Railroad, id. 231; Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 115 ; Mallory v. Burrett, id. 234).
Regarding it, then, as the law of this country, that an intermediate carrier, in whose custody the property was lost or injured, is answerable to the owner, the question recurs whether he can be allowed to absolve himself, when he receives goods for carriage, of the responsibility incident to the public nature of his calling, by an agreement, not with the owner of the goods, who is the one to be affected in the event of loss, but by an agreement entered into with the carrier from whom he receives the property upon its transit to the place of destination.
It is said, in the marginal note to Ladue v. Griffith (25 N. Y. 364), and I quote it because it conveys succinctly the view expressed in the opinion, in which the majority of the Judges of the Court of Appeals concurred, that “ public policy, *491in this country of long routes and frequent transhipment, forbids any intendment which would favor an intermediate carrier in divesting himself of that character, and assuming the more limited responsibility for a forwarderor, it might be added, in assuming, at his own election, or with the concurrence of the carriers who deliver him the goods for further transportation, the obligation only of an ordinary bailee for hire. “ The carrier at common law,” says Justice Smith, in the opinion last referred to, “is an insurer of the goods as against all accidents and perils except such as result from acts of God or a public enemy. Millions of property in value in this country is in the constant possession of carriers engaged in transporting it from one place to another. In this particular it may be truly said that men cast their bread upon the waters expecting to see it again, at a distant point, after many days. Goods are shipped and delivered to carriers by land, at the seaboard, or in the interior of the country, for transportation to distant points, with a simple direction indorsed of the name of the owner or consignee and the place of deliveryand in a subsequent case (McDonald v. Western Railroad Co. 34 N. Y. 500), the same Judge remarks “that the vast business of inland transportation of goods in this country is carried on, mainly, by routes formed by successive connecting lines of transit belonging to different owners, each of whom carry the goods over his own line, and deliver them to the next, who, in his turn, takes them on until they reach the final place of destination ;; that to carriers thus situated, and to goods thus transported, the policy of the common law rule of liability applies with peculiar force. It is a public policy, springing from the public nature of the employment of the carrier, and rendering their good conduct a matter of importance to the whole community.”
Should all these intermediate carriers, instead of discharging the duty which is required of them in their public capacity, under the responsibility which the law imposes to secure the' faithful performance of it, be permitted to qualify, alter, or change their responsibility as they think proper by agreements among themselves, or by inserting stipulations in the bills of *492lading which pass from one to the other in acknowledgment of the receipt of the goods for the purpose of carriage? If they can do it in one particular they can do it in all, and reduce their liability in every case to that of ordinary bailees for hire. If they can do this without the privity, consent, or knowledge of the owner, of what practical value, in a long course of transportation, and over many different routes, is the public rule which imposes upon common carriers the responsibility of insurers ? It could be frittered away by printed stipulations on bills of lading delivered to the carrier from whom the goods are received at the end of his route, and who, expressing no dissent, accepts the bill of lading, both as his voucher of the delivery of the property into the hands of the continuing carriers, and as the evidence of the contract made with the carrier for the further transportation of it. Should this be allowed without the concurrence or assent of the owner ? Is he to be deprived of the protection which the law affords him for the security and preservation of his property and its due delivery at the place of destination, by the agreements which the carriers along the route enter into among each other, or by the printed conditions of bills of lading which they may see fit to interchange one with the other ? How unjust this would be to the owner who surrenders up his property to a carrier for safe carriage and delivery at a point beyond that carrier’s route, and which may involve the necessity of its custody by many continuing carriers, may be very well illustrated by the present case, for here the first carrier, The Illinois Central Railroad Company, stipulated, in the bill of lading which they delivered to the plaintiffs or to their agents, that they assumed no responsibility beyond their own route, and that the legal remedy for any loss or damage should be against the particular carrier or forwarder in whose custody the property actually was at the time of the happening thereof. For any loss or damage, therefore, that might happen to the property after they had parted with the custody of it, no recourse could be had against them, and this being the case, are they to be allowed to bind the plaintiffs by making special contracts with the carriers to whom *493they deliver it for further transit, which take away or lessen those obligations which the law has imposed for his protection and that of all who entrust their property to common carriers ? If this were so, every carrier through whose hands the property passes might impose his own terms and conditions; and when the owner sought his remedy against the carrier who had the custody of the property when it was lost or injured, and who in this case would be the only one who would be answerable to him, he might be met by a special contract, which he knew nothing about, absolving that carrier from all liability unless the owner could prove how the loss happened, and that it occurred through the carrier’s negligence. In the printed part of many of the bills of lading of carriers which I have seen in the trial of causes, there has been a clause that the carriers were not to be responsible unless it could be shown affirmatively that the loss or damage occurred through the negligence of the carrier or his agents, thus imposing upon the owner, who may be living thousands of miles away, the obligation, before he could venture upon his action, of ascertaining exactly how the loss or injury happened, which in most cases would be difficult, and in many impossible. One of the very reasons for the extent of the liability of common carriers, as was said by Lord Mansfield, in Forward v. Pittman (1 T. R. 33), is “ to prevent.” the necessity of going into circumstances impossible to be unravel-led ; “ and therefore,” he says, “ the law presumes against the carrier, unless he shows that the injury was done by public enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests.”
It has been repeatedly held that a common carrier cannot, by a special acceptance, or by simply delivering a receipt or bill of lading containing stipulations to that effect, qualify his common-law ability (Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 138; Buckland v. Adams Empress Co. 97 Mass. 132; Fish v. Chapman, 2 Kelly, Ga. 357; Judson v. Western R. Co. 6 Allen, 486 ; Southern Empress Co. v. Newby, 36 Ga. 635).
The owner may agree to exempt the carrier from all or any part of his responsibility. It may be the owner’s interest to do so. He may be willing, in consideration of paying less than *494the ordinary rate, to take upon himself exclusively the risk of loss or damage in the carriage of the goods, and discharge the carrier from all liability therefor; but it must be shown that he expressly agreed to do so. His assent is not to be implied because a receipt or bill of lading has been delivered to him, with printed stipulations qualifying the carrier’s liability. He is under no obligation to read them over and point out what he dissents from, or declare that he dissents from the whole of them, at the peril otherwise of being concluded or bound by them. He may remain entirely passive, as he has the right to hold the carrier to the full extent of his common-law responsibilities, whilst the carrier has no right, upon his part, to impose any other or different conditions.
Indeed, it is difficult to see how the owner’s assent can be assumed unless he signs some memorandum or agreement in writing, or expresses it by some affirmative declaration or act, -or it is shown that, in consideration of his taking the risk, the goods were to be carried at a lower rate than it was customary to charge, which, possibly, may be inferred where, as in French v. Buffalo &c. R. Co. (4 Keyes’ R. 108), the significant words ££ owner’s risk ” are written across the face of the receipt or bill of lading.
If the carrier, then, cannot bind the owner by stipulations in the receipt or bill of lading which he gives when he receives the goods from him for carriage, it is very clear that an intermediate carrier cannot bind the owner by delivering a receipt embodying such stipulations to the carrier from whom he receives the goods in their transit for carriage over his route. He may refuse to receive them, it has been said, unless he is paid in ad vanee for their carriage (Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 124); but if he takes them, he can take them only under and subject to his common-law responsibility, which falls upon him the moment they are delivered into his custody (Angell on Carriers, §§ 129,356 ; Grosvenor v. N. Y. Central R. R. 39 N. Y. 34; Michaels v. N. Y. Central R. R. 30 N. Y. R. 564; Story on Bailments, § 533).
That responsibility he cannot vary or alter by a special acceptance, or by the delivery of a bill of lading—a receipt con*495taining terms and conditions—nor can he, in my judgment, by a special agreement with the carriers from whom he receives the goods, unless it is shown that the carrier had authority from the owner to make such an agreement. “ A man bound to any duty by operation of law,” said Lord Kenyon, in Hide v. The Trent Nav. Co (1 Esp. 36), “ cannot, by any act of Ms own, discharge himself; and he gives as an illustration the case of the carrier; to which, it may be added, nor can one carrier by an agreement with another discharge himself from the responsibility which the law imposes, and deprive the owner of the goods carried of what is in effect a public regulation, which the owner alone has the right to dispense with.
Ro other view than this will afford that protection to the owner which it was the object of the common law to secure, or prevent the rule it has laid down from being impaired by the ingenuity and contrivances of carriers; and in respect to the necessity of maintaining the rule in its integrity, it may be well to keep in mind the observation of Chancellor Kent upon its establishment in England, that it had its foundation “ in a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation in succeeding generations ” (2 Kent’s Com. 602).
I shall hold, therefore, in this case, (1) that the intermediate carrier cannot avoid the public responsibility, which he is under to the owner, to carry the goods in safety, and subject to all the obligations and conditions which the law imposes, by a special agreement entered into with the carrier from whom he receives them, unless it is shown that the carrier had authority from the owner to make such an agreement. (2) That the intermediate carrier is entitled to the benefit of any agreement entered into by the owner with the first earner qualifying or limiting the common-law responsibility, and will be regarded as taking the goods for carriage, upon the same conditions and subject to the limitations or exemptions that exist in that agreement; and (whether I am right or not in the first of these propositions) that no special contract for additional limitations was made on the part of the Union Transportation Company, by simply delivering a receipt with such conditions printed upon *496it, to the agent of the Illinois Central Railroad Company, when the goods were received for carriage, which is all that there is in this case to support the assumption of a special agreement that the value of the property at the place of shipment was to govern in the event of loss, instead of at the place of-delivery, the latter being the equitable and just rule which the law imposes.
The Union Transportation Company contracted for the carriage of the cotton from Chicago to New York, and whether the defendants, the Camden & Amboy Railroad and Transportation Company, in whose custody it was destroyed by fire, are to be regarded as the agents of the Union Transportation Company, or as a subordinate or connecting carrier, can make no difference as respects their liability to the plaintiffs.
As subordinate or connecting carriers they were entitled to the full benefit of the accepted risks contained in the Cairo bill of lading, and have received it upon the trial and in the decision previously made in this case. By the bill of lading a loss by fire was one of the perils from which the carriers were to be exempted. No recovery could therefore be had against the defendants, unless the plaintiffs could establish that the loss was occasioned by their negligence, which the plaintiffs succeeded in doing, by showing that the cotton was destroyed by a fire upon the defendant’s premises, the defendants failing, or being unable to show how the fire originated, and the jury finding, in the absence of satisfactory explanation, that it was from the want of proper care and diligence. Of their liability as intermediate carriers to the plaintiffs for a loss occasioned by their negligence, there is not the slightest doubt upon the authorities already referred to, both in this and in the former opinion. The complaint, it is true, setsTup a contract between the plaintiffs and the defendants, but it also avers that they so negligently conducted and misbehaved in their calling as carriers, that the cotton was never delivered to the plaintiffs, but was wholly lost to them.
This is an averment of negligence, and if the complaint is defective in setting up also a contract between them and the plaintiffs, the court can and will, after verdict, and in further*497anee of justice, so amend the complaint as to confirm the pleading to the proof.
They are not entitled to the benefit of the clause inserted in the Chicago bill of lading, with the design of substituting a different rule from that which the common law declares shall regulate the measure of damages, for the reason already given that no contract of that nature was made by the Union Transportation Company, delivering to the agent of the Ulinois Railroad Company a receipt or bill of lading embodying a printed stipulation to that effect, nor in my judgment could have been made so as to bind the plaintiffs, unless they had conferred the authority.
The judgment must therefore be affirmed for the whole amount of the verdict.