place, is prima facie evidence of non-delivery. Though the burden of proof is on the plaintiff to show that the property did not safely reach its destination, it is not material how the fact is proved. Where it was shown that the defendant's boat, in which the property was stowed, had been capsized on the route and the property damaged, and a portion of it carried to a place out of its course, it was ruled sufficient to throw the burden of proof on the defendants to account for the property.2

Upon proof of a delivery of goods to a common carrier for transportation, accompanied with evidence that they have not been delivered at their place of destination after a reasonable time, the carrier is called upon to account for the goods, and render a legal excuse for the nonperformance of his contract.3 For, from the moment he receives the goods into his custody, everything is negligence in the carrier which the law does not excuse. And where he has not limited his liability by special contract, the law excuses him in only two instances; namely, where he is prevented from fulfilling his engagement by the act of God or of public enemies.5

§ 670. In respect to goods delivered to one who is not a common carrier, for conveyance from one place to ar.other without hire, the presumptions are different; and the bailee may excuse himself for a loss by evidence of his own acts and declarations immediately before and after the loss; that is to say, these are to be received in evidence as a part of the case, which the jury are at liberty to consider. Such declarations, to become a part of the res gestæ, must have been made at the time of the act done, or directly after, and must have been so made as to qualify and explain the act, and so harmonize with it, as to constitute really one transaction."

In an action against a bailee without hire, on an undertaking to carry and deliver a sealed letter containing money, the plaintiff must prove a

1 Griffiths v. Lee, 1 Carr. and Payne R., 110.

2 Day et al. v. Riddley et al., 16 Verm. R. 48. Non-delivery may be proved in various ways; as by proving that the carrier did not bring the goods to the place of delivery: Schroeder v. Hudson R. R. R. Co., 5 Duer, 55; or by proving that the carrier failed on request to give any account of the goods; Westcott v. Fargo, 6 Lans., 319; 63 Barb., 349; or by proof of his refusal to deliver; Newstadt v. Adams, 5 Duer, 43; ante § 611.

3 Dale v. Hall, 1 Wils., 281.

4 Rich v.

Kneeland, Hob., 18; Batson v. Donovan, 4 Barn. and Ald., 21; 21 Wend. R., 190; 1 Conn. R., 487.

5 Jeremy on Car., 31, 32.

6 Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275.

'Enos v. Tuttle, 3 Conn. R., 250; Moore v. Meacham, 10 N. Y., 207.

loss of the package by the defendant's gross or culpable negligence, or that he has broken the seal and appropriated the money to his own use.1 Having demanded the money or goods before bringing his suit, the plaintiff may establish his cause of action by showing the circumstances, together with the defendant's failure to restore or to account for the money or property. On proof of a total failure to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee: it is otherwise where the cause of the loss appears in evidence, and is consistent with reasonable diligence on the part of the bailee. The presumptions are much stronger against the common carrier, who must account for the property or show a loss of it from causes for which he is not liable under his contract, or under the common law.3

§ 671. In actions against a common carrier, on a special acceptance by him limiting his liability, the plaintiff must set forth the contract according to its terms; and his evidence must be prima facie sufficient to establish the allegations in his complaint. He must prove an injury to the goods or a loss of them, or a failure to deliver; he must support his complaint by evidence, which, being unexplained, raises the presumption that the goods were lost or damaged by the carrier's failure to full his contract. It then rests with the carrier to show that the injury or loss was caused without fault on his part; since without evidence it cannot be presumed that the injury or loss is covered by the exemption contained in the contract.5

The plaintiff must prove, as well as allege, the facts which constitute his cause of action; but he cannot from the nature of things prove a negative fact with the same certainty, or with the same species of evi dence with which he may establish an affirmative fact. And hence the plaintiff may prove a loss of a package or parcel by the carrier's negligence, by showing his failure to deliver it to the owner at the place of destination. The presumption of a loss by negligence, arises

1 Beardslee v. Richardson, 11 Wend. R., 25.

2 Willard v. Bridge, 4 Barb., 361, 337; 22 Barb., 314; 55 Barb., 188, 193; 5 Duer, 43, 46; 1 E. D. Smith, 54; ante §§ 59-62, 106; 155-159; 399–402.

3 Foote v. Storrs, 2 Barb., 326; 6 Lansing, 319; 63 Barb., 349; 49 N. Y., 249 ; ante 611; see Fairfax v. N. Y. C. & H. R. R. Co., 67 N. Y., 11.

4 Cochran v. Dinsmore, 49 N. Y., 249; Lamb v. Camden & Amboy R. R. Co., 46 N. Y., 271; Harris v. Packwood, 3 Taunt., 264; Marsh v. Horne, 5 Barn. & Cress., 322; Memphis & C. R. R. Co. v. Reeves, 10 Wall., 126.

Union Ex. Co. v. Graham, 23 Ohio St., 595; Simmons v. Law, 3 Keyes, 217; French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108, 115; 30 N. Y.,

2

from the fact of non-delivery; and a like presumption arises from the carrier's delivery of goods in a damaged condition, it being first proved that he received them in good order; the same presumption arises against the carrier, where he fails to deliver the quantity received by him.3 The presumption is not so strong where a carrier delivers a perishable article in an impaired or damaged condition; and so he may overcome it by showing that it was properly stowed and transported.

When goods are carried over successive lines of connecting railroads, and are delivered in a damaged condition, the owner establishes prima facie a right to recover against the last carrier, by showing that the goods were delivered in a good condition to the first carrier, and delivered by the last in an injured or damaged state. The presumption is based in part upon the policy of the law, considering how difficult it is for the owner to follow the goods along the extended line of transportation and show by whose negligence the injury was caused; and in part upon this general rule, that things once proved to have existed in a particular state, are to be presumed to continue in that state, until the contrary is established by evidence, either direct or presumptive.

So the owner suing the first of several connecting lines, establishes a prima facie right to recover, by showing the non-arrival of the goods at the place of destination: this proof being sufficient to cast upon the carrier the burden of showing what became of the goods."

What proof is sufficient to establish a prima facie case against a carrier, intermediate the first and last? Proof of delivery to the first, being sufficient prima facie to charge him with having received the goods, additional proof that he did not transfer the goods to the succeeding carrier, must be sufficient to cast upon him the onus of accounting for

1

1 Burnell v. N. Y. Central R. R. Co., 45 N. Y., 184, 189; the delivery to the carrier must be first clearly proved; Woodbury v. Feink, 14 Ill., 279; McQuesten v. Sanford, 40 Maine, 117; ante § 611.

2 Ellis v. Willard, 9 N. Y., 529; Hastings v. Pepper, 11 Pick., 43, 106; Rich v. Lambert, 12 How. U. S., 357; Clark v. Barnwell, 12 IIow. U. S., 280.

3 Hawkes v. Smith, 1 Carr. & M., 72; 9 N. Y., 529.

4 Lambert v. Benner, 1 Sweeny, 665; Nelson v. Woodruff, 1 Black, 156; 12 How. U. S., 272, 283.

5 Smith v. N. Y. Central R. R. Co., 43 Farb., 225, affirmed in Court of Ap.. peals, 41 N. Y., 620; Wing v. N. Y. & Erie R. R. Co., 1 Hilton 235; Laughlin v. Chicago &c., 28 Wis., 204.

6 Best on Presumptions, § 136; 4 Denio, 431; 9 Barb., 271; 22 Barb., 516; 58 N. Y., 475; see 37 N. Y., 162.

Briutnall v. Saratoga R., 32 Vt., 665.

them.1 Having been once charged with the custody of the goods as a carrier, he remains presumptively liable for them until he passes them over to the next carrier or to the owner.2

§ 672. When a carrier makes a special contract, exempting himself from certain specific dangers or risks, and fails to deliver the goods; it rests with him to show that the loss arose from the specified dangers or risks. He must bring himself within the exception. If he engages to carry and deliver goods safely, unless prevented by the perils of the sea, the lake or river, and does not deliver the goods; it is incumbent upon him to show that he was prevented from delivering them by such perils; proof of non-delivery, or of loss or damage unexplained by the circumstances, being sufficient to throw upon the carrier the burden of accounting for the goods.5

4

The law will not presume a party guilty of culpable neglect of a legal duty. Hence the plaintiff, alleging a loss of his goods by the defendant's negligence, must as a general rule prove his allegation; he must support his complaint by evidence sufficient to uphold a verdict against the defendant. The defendant must then show a loss within the exceptions contained in the contract; and the plaintiff may then take up the case and show that the defendant's negligence under the circumstances actually caused or permitted the loss. This shifting of the burden of proof occurs daily in the trial of this class of causes."

1 See Mills v. Michigan Central R. Co., 45 N. Y., 622; McDonald v. Western R. Cor., 34 N. Y., 497; 43 Barb., 225. In Lee v. Bernheimer, 6 J. & S., 40, it is held that no presumption of the arrival of goods, arises from their shipment.

2 Gould v. Chapin, 20 N. Y., 259.

3 Woodworth v. McBride, 3 Wend., 227; 4 B. & C., 443; 4 Campb., 20; Ayman v. Astor, 6 Cowen, 233; ante § 587, and note.

4 Trausportation Co. v. Downer, 11 Wallace, 129; Clark v. Barnwell, 12 How. U. S., 272; ante § § 585-587, and note to § 587.

5 Riley v. Horne, 5 Bing., 217; Home Ins. Co. v. Western Transp. Co., 51 N. Y., 93; King v. Shepard, 3 Story C. C. R., 349.

6 Hartwell v. Root, 19 John. R., 345; Munn v. Baker, 2 Stark. R., 255.

7 Westcott v. Fargo, 6 Lans., 319; The J. Russell M. Co. v. N. II. S. Co., 51 N. Y., 21; Graham v. Davis, 4 Ohio St., 302; Cleveland R. R. v. Curran, 19 Ohio St., 1, 221; Knowlton v. Erie R. R., 19 Ohio St., 260; Steinweg v. Erie Railway, 43 N. Y., 123; Condict v. Grand Trunk R. Co., 54 N. Y., 500, C5, citing Lamb v. Camden & Amboy R. R. & T. Co., 43 N. Y.. 271, which turned on the question as to the burden of evidence to show the fact of a negligent loss by fire. See Rawson v. Holland, 59 N. Y., 611; Steers v. Liverpool, N. Y. & Phila. S. Co., 57 N. Y., i; 56 N. Y., 194; 54 N. Y., 197; 45 N. Y., 514; 12 How. U. S., 272; Home Ins. Co. v. Western Transp. Co., 51 N. Y., 93, 93; 51 2. Y., 369, 497; 50 N. Y., 661; Viner v. N. Y. &c. Steamship Co., 50 N. Y., 23, 53; 49 N. Y., 442; Cochran v. Dinsmore, 49 N. Y., 210; Zinn v. New Jersey S. Co., 49 N. Y., 442; 48 N. Y., 203; 47 N. Y., 282, 525; 45 N. Y., 184, 514; 44 N. Y., 94; 44 N. Y., 263; Guillaume v. Hamburgh & Am. Packet Co., 42 N. Y., 212.

The fact of negligence is ordinarily to be found by the jury, from the evidence and the attending circumstances. It is for the jury to pass upon conflicting evidence, and find the fact from the testimony before them; as they may in many cases from the nature of the accident, or from the conduct and relation of the parties, when the loss occurred.2 "If a thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the want of proper care."3

§ 673. Damages. The amount of damages to be recovered in an action against the carrier, depends upon the extent of his liability and the nature of the loss or injury sustained. On a total loss, where there is no special contract limiting his liability, the value of the goods at the place of destination, deducting freight, is the measure of damages; and, if the goods be not totally lost, the owner recovers damages equivalent to the injury sustained. In an action on a bill of lading, for not delivering goods, stated to have been lost or embezzled during the voyage, without fraud on the part of the defendant, it was held that the master must answer for the value of the goods missing, according to the clear net value of goods of like kind and quality at the port of delivery;" and he may also be held to pay interest on the value of the goods from the time he ought to have delivered them; interest being the reasonable measure of damages for the detention of the ascertained amount, to be allowed or not, according to the earlier decisions, in the discretion of the jury. Upon principle, the owner is now considered entitled to interest on the damages from the time he sustained the injury. The damages recoverable against a carrier are such as result naturally from his failure to fulfill his contract. If the property be wholly lost in the

1 Ireland v. O., H. & S. Plank Road Co., 13 N. Y., 526, 533; Ernst v. Hudson River R. Co., 35 N. Y., 9.

2 The J. Russell M. Co. v. N. H. S. Co., 50 N. Y., 121; 18 N. Y., 534, 544.

3 Scott v. London &c. Dock Co., 3 Hurlst. & Colt., 596; 13 Peters, 181. Jeremy ou Carriers, 132; Ludwig v. Meyre, 5 Watts & Serg., 435; Hand

v. Baynes, 4 Whart., 204.

Bracket v. M'Nair, 14 John. R., 170; Wallace v. Vigus, 4 Blackf. (Ind.), 260; McGregor v. Kilgore, 6 Ohio R., 143; ante § 610.

6 Watkinson v. Laughton, 8 John. R., 213; Sturgess v. Bissell, 46 N. Y., 462. 7 Richmond v. Bronson, 5 Denio, 55; 45 Barb., 40.

8 Sherman v. Wells, 28 Barb., 403; Sedgwick on Damages, 424, 6th ed. Sea Lakeman v. Grinnell, 5 Bosw., 625, where the loss occurred before the vessel sailed; Krohn v. Oechs, 48 Barb., 127.