The plaintiff by his pleadings seeks to confine the inquiry in this case to the shipment from Huntington to Portland; but during the progress of the trial both sides found it necessary to inquire somewhat into the condition of the goods prior to their arrival at Huntington. The object of this inquiry on. the part of the defendant was to furnish the jury some facts by which they might be able to determine the condition of the goods when they were received by the defendant company. As the case went to jury, there was neither allegation nor proof as to whether these goods were in a proper condition for shipment at the time the defendant received them.
*25The first ruling of the court to which our attention will be directed is the exclusion from the consideration of the jury of the part of the way-bill above referred to written in pencil. The way-bills were issued by the Union Pacific Railway Company at Granger and at Ogden, respectively, and on their face they tended to show that these goods were not in proper condition for shipment when they were started forward from those points by order of the plaintiff. The way-bill issued at Granger tended to show that the Hugh Doak shipment to that point was in bad order and condition—barrels leaking, boxes of glassware rattling, and boxes stained; and the agent at Granger testified that the shipment from that point was way-billed as being in bad order. It was stated in pencil on the face of the way-bill, which accompanied the Miller shipment from Ogden: “ All this shipment badly broken up; all boxes broken; cans spilled and injured; repacked here into 15 boxes; weight, 1,810.” The court admitted the way-bills except those parts tending to show the condition of the goods. These were excluded. Those parts were then offered by the defendant and again excluded.
Upon the trial here counsel for the appellant urged that these portions of the way-bills were a part of the res gestae, and admissable as a part of the transaction of the shipment. Whether they are a part of the res gestae seems unnecessary for us to determine for the reason we think they were admissible on another ground. The plaintiff introduced the way-bills in evidence, and he could not be permitted to select that part which was favorable to his side of the case, and exclude a part of the same paper which might operate unfavorably. Of course, if it appeared that the part of the way-bill to which the plaintiff objected had been surreptitiously written by some unauthorized person, it could not affect the rights of the parties; but simply finding it in pencil is not enough; for aught that appears it was written at the same time that the other *26parts of the bill were written; and the plaintiff having made the way-bill evidence by offering a part of it, the defendant had the right to have the entire paper submitted to the jury for whatever they might think it was worth, and its exclusion by the court was error.
There was no evidence in the cause that any of the goods were injured while being transported from Huntington to Portland, nor did it appear from the evidence that they were in good condition or well packed or boxed at the time the defendant received the„ same from the Oregon Short Line. On this point the defendant’s counsel asked the court to instruct the jury: “First—There is no evidence in the cause that any of the goods in the complaint mentioned were damaged or injured while the goods were in transit between Huntington and Portland, or after having been received at Huntington for carriage. Second —There is no evidence in the cause that the goods in the complaint mentioned were damaged or injured through any carelessness, negligence or misconduct of the defendant,. its servants or employés.” These instructions covered several allegations made by the plaintiff, and upon which he apparently based his right to recover, in part at least; and having failed to produce any evidence whatever tending to prove them, it was the right of the defendant to have the court tell the jury directly that the plaintiff was without evidence on these parts. Such instructions would have eliminated that much of the plaintiff’s contention from the case, thus narrowing the controversy down to the precise and definite point upon which it must turn.
The defendant also asked the court to instruct the jury as follows: “As between shipper and carrier of goods, it is incumbent upon the shipper to so reasonably and securely pack the same that they would not be injured from the ordinary and usual incidents attendant upon a shipment of the same from one point to another, and if the goods be in their nature perishable or encased in glass *27so as to be susceptible of easy breakage, greater care is required of the shipper in. the matter of packing and boxing to prevent breakage. A carrier is not liable for injury or damage to goods arising from insecure or imperfect packing or boxing; and if in this case the jury believe that the goods in the complaint mentioned were so imperfectly packed or boxed, and that thereby and by the ordinary incidents arising from transportation of such goods the damage and injury complained of arose, the verdict should be for the defendant.”
The general rule on the subject of the liability of common, carriers of goods is said to be that they are liable for all losses excepting those caused by the act of God or the public enemy, but this definition is said to be misleading. “More correctly it may be said that the carrier is not liable: (1) For losses caused by the act of God; (2) losses caused by the public enemy; (3) losses caused by the inherent defect, quality, or vice of the thing carried; (4) losses caused by the seizure of goods or chattels in his hands under legal' process; (5) losses caused by some act or omission of the owner of the goods.” (Lawson Carriers, 5, 6.) And further on, the same author states the principle more fully. He says: “Carriers are not liable for losses arising from the ordinary wear and tear of goods in the course of transportation, nor for their ordinary deterioration in quantity or quality, nor for their inherent natural infirmity or tendency to damage; and this rule includes the decay of fruits, the diminution, leakage, or evaporation of liquids, and the spontaneous combustion of goods. In all such cases, where the negligence of the carrier does not cooperate in the loss, he will be excused. This exception also includes all injuries done by living animals to themselves and to each other; losses that are caused by their inherent vices and propensities and which excuse the carrier if his negligence does not concur in causing them.” (Lawson Carriers, 15, 16.) And the same principles are stated in 2 Am. & Eng. Ency. Law, *28853, and abundantly supported by an array of authorities not to be questioned. The instruction asked substantially covered this view of the carrier’s responsibility and should have been given.
The ninth instruction asked by the defendant embodied a correct principle of law, aud should have been given. The instruction is as follows: “ Ninth—If the jury believe from the evidence that the goods in the complaint mentioned were received at Huntington by the defendant for carriage to Portland, that they were carried by the defendant and arrived in Portland in the condition in which they were received, the verdict should be for the defendant.” But the failure to give this instruction would not of itself be sufficient to reverse the judgment for the reason the court gave it substantially in its general charge. But in addition to this, the court told the jury among other things that “ the history of the transit from Granger and Ogden to Huntington, may or may not have been presented by this 'testimony, but the goods ought to be presumed by you to be in no worse condition at Huntington than they were at Granger and Ogden. They could hardly be presumed to be in any better condition, but they ought not to be presumed in any worse condition than they were at Granger and Ogden.” Under the particular facts of this case, it seems to us this instruction was inapplicable and did not declare the correct rule of law.
There was some evidence before the jury tending to prove that at one of the points east of Huntington the barrels were leaking at the bungs, glass rattling in the boxes, and the boxes were stained. These facts would clearly indicate that the goods were not in a safe or proper condition for transportation at that time; and it was a question of fact for the jury to find from the evidence what the condition of the goods was when the defendant received them, and whether or not their further transportation in that condition did reduce them to a worse condition than when *29they were received. It was not a case, then, where any presumption could be invoked, but. a question of fact to be found solely upon evidence. The Missouri Pac. R. R. Co. v. Breeding, 16 S. W. Rep. 184, is authority on this point. In that case, the court having this question under consideration, said: “Negligence or a failure to perform a duty required by law is never presumed as a fact, but must be proved by evidence; and ,the burden of proving it is on the party seeking a recovery of damages by reason of such negligence or failure of duty. The machine was secondhand, and the plaintiff introduced no evidence showing that it was in good condition or what was its condition when received by the company for shipment.”
Some other questions were presented at the argument, but we have not deemed their consideration necessary to a proper disposition of this case; but for the errors already referred to, the judgment must be reversed and a new trial awarded.