On Petitions to Rehear
SHRIVER, J.Both the defendants in error have filed petitions to rehear.
We think that an examination of our opinion heretofore filed will clearly indicate that every question raised in each of the petitions to rehear was fully considered by this Court.
We think there was a jury question as to whether or not the alleged improper method of loading of the car by the shipper was the proximate cause of the loss. It is to be remembered that this car was hauled for three days, a distance of 271 miles without leakage. The proof shows that the valve and outlet cap were closed as tight as they reasonably could have been when the car was loaded and *75that the bill of lading issued by the Tennessee Central Railway acknowledged that the car was received in apparent good order. Such inspection as the T. C. employees gave the car after it had traveled 219 miles and was turned over to the defendant C. N. 0. & T. P. Ry. indicated that it was still in apparent good order. Nevertheless, the valve did become opened and the outlet cap came off and the tallow spilled out of the car.
It is the position of defendants that the failure of the plaintiff to leave the outlet cap off while the car was being loaded must be considered as the proximate cause of the loss. With this we cannot agree, particularly, in view of the fact that it was stipulated that all mechanisms of the car were in proper condition and in good working order at the time the load was received by the carrier. It seems obvious that the purpose of leaving the cap off during the loading is to determine whether or not the valve is in proper working condition at the time and, since it is stipulated that it was in proper working condition, it would seem that the failure to leave off the cap during loading might be considered by reasonable men to have been innocuous and of no material consequence. At least such a conclusion is reasonable.
In any event, there was certainly a question for the jury as to the liability of the C. N. 0. & T. P. Ry. Co. on the issue of whether or not its servants were negligent in allowing the train to travel six miles after the leak was first discovered before it was stopped, when the proof showed that it might have been stopped in a much less distance. As pointed out in the original opinion, all that was required to correct the condition was to manually operate the valve to prevent further loss, which is also significant.
*76As to tlie petition of the Tennessee Central Railway Co. we feel that counsel have overlooked the force and effect of the Carmack amendment, it being the position of Tennessee Central that there was no reason for holding it liable since the carrier on whose lines the loss occurred was before the Court.
We point out again that, as was held in Atlantic Coastline R. R. Co. v. Riverside Mills, 219 U.S. 186, 31 S. Ct. 164, 55 L. Ed. 167, the undisputed effect of the Carmack amendment is to hold the initial carrier who is engaged in interstate commerce by receiving’ property for transport from a point in one state to a point in another state, as having contracted for through carriáge to the point of destination, using the lines of connecting carriers as its agents.
In ease of loss the shipper is not required to search out the guilty carrier over whose line his goods were shipped in order to maintain his suit and have a recovery. Under the Carmack amendment he may sue the initial carrier where, as in this case, it contracted to deliver the cargo to its destination in another state, using a connecting carrier.
Another fact that counsel for the Tennessee Central seems to have overlooked is that, where there is a loss by a carrier, as in this case, there is a presumption of negligence on the part of the Railroad and this presumption must be overcome by proof.
In this record there is no evidence as to how the car was handled while in the possession of the Tennessee Central. It is possible that rough handling of the car or tampering with the outlet valve and its controls by someone unauthorized to do so may have loosened said valve *77while in possession of the Tennessee Central Ry. There was proof that the valve was closed tight before it was turned over to the initial carrier. As to whether it was still tight when it reached the other defendant carrier we do not know because the valve may have been loosened and still the outlet cap remaining on would have prevented the loss of tallow until the outlet cap was jostled loose by the vibration of the car.
Considering the presumption of negligence and the effect of the Carmack amendment, together with all the other facts and circumstances in this cause, and especially the fact that the petitions to rehear do not raise any questions which we have not already considered, the petitions are denied.
Petition denied.
Felts and Hickerson, JJ., concur.