The opinion of the court was delivered by
Steele, J.1. The county court ruled that the defendants, under the circumstances of this case, were to be held to the exercise of only ordinary care and diligence. It is well settled that the printed notices, receipts and regulations of a railway company, even when brought to the notice of the shipper, will have no more effect than the court by this ruling gave them. The defendants could not carry freights upon their railway for a reward without being liable for a failure to use ordinary care in carrying them. No exception by the defendants can, therefore, prevail upon this branch of the case, whether taken to the ruling the court made upon the subject, or to the exclusion of testimony, whose only tendency, if admissible, would have been to prove the defendants entitled to that ruling-.
2. The receipts, way-bills and books, together with the testimony of the manner and course of the defendants’ business, constituted, in our judgment, proper and sufficient evidence to warrant the court in submitting to the jury the question whether or not the defendants undertook to transport the goods over the connecting roads to the point of their ultimate destination.
3. The burden was upon the plaintiffs to prove that the defendants failed to exercise ordinary care. In other words, it was for the plaintiffs not only to establish the contract or duty, but also the breach of it, in order to entitle them to a recovery. The court did not so tell *338the jury in express terms, but such was the unmistakable effect of the charge. It is, however, suggested that there was no evidence of negligence, and that the ruling asked for, if properly applied" to the evidence, would have required the court to tell the jury, first, that the burden was upon the plaintiffs to prove negligence, and, secondly, that the plaintiffs had failed to make that proof. It appeared that the freight was unusually delayed. The defendants did not attempt to excuse or explain the delay. Their facilities for tracing the history of their own trains would probably be complete while the plaintiffs, if they sought information on the subject, would be mainly dependent on the defendants and their subordinates. This unusual and unexplained delay and failure to deliver the property according to the general course of business raises a natural presumption of negligence, and is sufficient prima facie evidence of a want of ordinary care. It was by no means incumbent upon the plaintiffs to prove that there was not some unavoidable accident, or other -unforseen occurrence, which would relieve the defendants from this natural presumption. To require the plaintiffs, in making a primei facie case, to assume the burden of negating the occurrence of matters which, if they did occur, were out of the usual course of events, and particularly within the defendants’ knowledge, would be an extraordinary perversion of the natuaral and ordinary rules of evidence. See Day v. Ridley, 16 Vt. 48; Brintnall v. S. & W. R. R. Co., 32 Vt. 665.
4. In the caption of the deposition of Adams tlje Christian name of one of the defendants is erroneously written Edward instead of Edwin. The name of the other defendant is written accurately, and both are described correctly as the trustees of the second mortgage bondholders of the Rutland & Burlington railroad, in which capacity they defend the suit, and appeared at the taking of the deposition. The names Edward and Edwin are so nearly idem sonans, that in view of the accurate naming of the other defendant, and description of both, we have no hesitation in holding that the defendants are set up in the caption with such substantial and unmistakable certainty as to constitute a sufficient compliance with the statute, and to Warrant the court in receiving the deposition.
*3395. The court correctly disposed of the point made upon the Massachusetts statute relative to the sale of veal killed when less than four weeks old. There is no presumption that the parties, residents of Vermont, knew of this statute, or were guilty of any corrupt intent to violate it. The statute is, at best, but a local sanitary regulation, beyond whose jurisdiction the plaintiffs, when they learned of its existence, could, in a few hours, have shipped the veal, if, in fact, any of it was so killed as to come within its provisions.
6. The declaration in each count sets up a special contract for unusual despatch, alleging in one count that the defendants promised to transport the freight “ by express and through freight trains in another, “ by the first through and express freight trains and in the third, “ by the earliest and quickest freight trains.” The plaintiffs’ evidence, so far from tending to prove such a contract, proves that it was understood that the freight was not to be so carried. There is, then, a manifest variance between the declaration and the proof. The declaration seems to be in assumpsit, and the first count somewhat singularly reads, “ in a plea of assumpsit,” but even if the declaration is in case, ex delicto, the variance would be equally fatal. In the early and familiar cases of Wright v. Geer, 6 Vt. 151, and Vail v. Strong, 10 Vt. 457, the authorities are collated, and it is held, as the result of them all, to use the language of Phelps, J., “ that whether the action is in form ex contractu, or ex delicto, if the cause of action, as set forth, originates in a contract, the contract must be proved as laid.” The point was distinctly made in the ninth request that the evidence .had no tendency to prove such a special contract as was alleged, and although the request did not specify the variance, as it should have done, still as the court accepted it without requiring it to be more specific, we see no way to avoid reversing the judgment.
The question with relation to the right under this declaration to recover for the injury to the skins, and some other points raised in argument, are not referred to, because in a future trial upon a new declaration they will not be likely to be of any practical importance.
The judgment is reversed, and cause remanded.