R. R. Cas. 530, 21 N. W. R. 49, it was, in effect, held competent for a railroad company engaged in the business of transporting live-stock to exempt itself by express contract "from damage caused wholly or perhaps in part by the instincts, habits, propensities, wants, necessities, vices or locomotion of such animals." And it was then said: "Since the action is not based upon contract, the plaintiff must recover, if at all, by reason of the defendant's liability as a common carrier upon mere notice to furnish cars, and a readiness to ship at the time notified. Did such notice and readiness to ship create such liability? We have seen that a carrier of live-stock may, to at least a certain extent, limit its liability. Whether the defendant was accustomed to so limit its liability, or to carry all live-stock tendered upon notice, without restriction, does not appear from the record. If it was accustomed to so limit, and the limitation was legal, it should at least have been so alleged, together with an offer to comply with the customary restriction. If it was accustomed to carry all live-stock offered upon notice and tender, and without restriction, then it would be difficult to see upon what ground it could discriminate against the plaintiff by refusing to do for him what it was constantly in the habit of doing for others."

In that case, there was a failure to allege any such custom or holding out on the part of the defendant, or that reasonable notice had been given to the defendant to furnish suitable cars to the person applying therefor, or that the same was within its power to do so; and hence the demurrer was sustained. The allegations thus wanting in that case are present in this complaint. It is, moreover, in effect admitted that the defendant was at times, when able to do so, engaged in the transportation of live-stock over its roads, one line of which runs through the stations in question; that it was accustomed to furnish suitable cars therefor, upon reasonable notice, when within its power to do so; and to receive, transport, and deliver such live-stock with reasonable dispatch, but only upon special contracts at the time entered into between the shipper and the defendant, and upon such terms and conditions as should be agreed upon in writing. It is, moreover, manifest that the defendant actually undertook to furnish the cars at the time designated by the plaintiffs; that it succeeded in furnishing two of them on time; that there was a delay of two days in furnishing the other five; and that the plaintiffs were willing to and did submit to the terms and conditions of carriage imposed by the defendant by signing the special contracts mentioned. It must be assumed also, that such special written contracts were substantially the same as all contracts made by the defendant at that season of the year for the shipment of similar live-stock under similar circumstances. Otherwise the defendant would be justly chargeable with

unlawful discrimination; the right to do which the learned counsel for the defendant frankly disclaimed upon the argument.

We are therefore forced to the conclusion that, at the time the plaintiffs applied for the cars, the defendant was engaged in the business of transporting live-stock over its roads, including the line in question, and that it was accustomed to furnish suitable cars therefor, upon reasonable notice, whenever it was within its power to do so; and that it held itself out to the public generally as such carrier for hire, upon such terms and conditions as were prescribed in the written contracts mentioned. These things, in our judgment, made the defendant a common carrier of livestock, with such restrictions and limitations of its common-law duties and liabilities as arose from the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals, under the contracts of carriage. This proposition is fairly deducible from what was said in Richardson v. Chicago etc. R'y Co., supra, and is supported by the logic of numerous cases: North Pennsylvania R. R. Co. v. Commercial Bank, 123 U. S. 727, 8 S. Ct. R. 266; Moulton v. St. Paul, etc. R. R. Co., 31 Minn. 85, 16 N. W. R. 497, 12 Am. & Eng. R. R. Cas. 13; Lindsley v. Chicago etc. R. R. Co., 36 Minn. 539, 32 N. W. R. 7; Evans v. Fitchburg R. R. Co., 111 Mass. 142, 15 Am. R. 19; Kimball v. Rutland, etc. R. R. Co., 26 Vt. 247, 62 Am. Dec. 567; Rixford v. Smith, 52 N. H. 355, 13 Am. R. 42; Clarke v. Rochester etc. R. R. Co., 14 N. Y. 570, 67 Am. Dec. 205; South & N. A. R. R. Co. v. Henlein, 52 Ala. 606, 23 Am. R. 578; Baker v. L. & N. R. R. Co., 10 Lea, 304, 16 Am. & Eng. R. R. Cas. 149; Philadelphia etc. R. R. Co. v. Lehman, 56 Md. 209, 40 Am. R. 415; McFadden v. M. P. R. R. Co., 92 Mo. 343, 4 S. W. R. 698, 3 Am. & Eng. Cyclop. Law, 1-10, and the cases there cited. This is in harmony with the statement of Parke, B., in the case cited by counsel for the defendant, that "at common law a carrier is not bound to carry for every person tendering goods of any description, but his obligations is to carry according to his public profession:" Johnson v. Midland R. R. Co., 4 Ex. 372. Being a common carrier of live-stock for hire, with the restrictions and limitations named, and holding itself out to the public as such, the defendant is bound to furnish suitable cars for such stock, upon reasonable notice, whenever it can do so with reasonable diligence without jeopardizing its other business as such common carrier: Texas etc. R. R. Co. v. Nicholson, 61 Tex. 491; Chicago etc. R. R. Co., v. Erickson, 91 Ill. 613, 33 Am. R. 70; Ballentine v. N. M. R. R. Co., 40 Mo. 491, 93 Am. D. 315; Guinn v. W. St. L. & P. R. R. Co., 20 Mo. App. 453.

Whether the defendant could with such diligence so furnish upon the notice given, was necessarily a question of fact to be determined. The

plaintiffs, as such shippers, had the right to command the defendant to furnish such cars. But they had no right to insist upon or expect compliance, except upon giving reasonable notice of the time when they would be required. To be reasonable, such notice must have been sufficient to enable the defendant, with reasonable diligence under the circumstances then existing, to furnish the cars without interfering with previous orders from other shippers at the same station, or jeopardizing its business on other portions of its road.

It must be remembered that the defendant has many lines of railroad scattered through several different states. Along each and all of these different lines it has stations of more or less importance. The company owes the same duty to shippers at any one station as it does to the shippers at any other station of the same business importance. The rights of all shippers applying for such cars under the same circumstances are necessarily equal. No one station, much less any one shipper, has the right to command the entire resources of the company to the exclusion or prejudice of other stations and other shippers. Most of such suitable cars must necessarily be scattered along and upon such different lines of railroad, loaded or unloaded. Many will necessarily be at the larger centers of trade. The conditions of the market are not always the same, but are liable to fluctuations, and may be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such cars should be distributed along the different lines of road, and the several stations on each, as near as may be in proportion to the ordinary business requirements at the time, in order that shipments may be made with reasonable celerity. The requirement of such fair and general distribution and uniform vigilance is not only mutually beneficial to producers, shippers, carriers, and purchasers, but of business and trade generally. It is the extent of such business ordinarily done on a particular line, or at a particular station, which properly measures the carrier's obligation to furnish such transportation. But it is not the duty of such carrier to discriminate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance. These views are in harmony with the adjudications last cited.

The important question is, whether the burden was upon the plaintiffs to prove that the defendant might, with such reasonable diligence, and without thus jeopardizing its other business, have furnished such cars at the time ordered and upon the notice given; or whether such burden was upon the defendant to prove its inability to do so. We find no direct` adjudication upon the question. Ordinarily, a plaintiff alleging a fact has the burden of proving it. This rule has been applied by this court,

even where the complaint alleges a negative, if it is susceptible of proof by the plaintiff: Hepler v. State, 58 Wis. 46, 16 N. W. R. 42. But it has been held otherwise where the only proof is peculiarly within the control of the defendant: Mecklen v. Blake, 16 Id. 102, 82 Am. D. 707; Beckman v. Henn, 17 Id. 412; Noonan v. Ilsley, 21 Id. 144, 84 Am. D. 742; Great Western R. R. Co. v. Bacon. 30 Ill. 352, 88 Am. D. 199; Brown v. Brown, 30 La. Ann. 511. Here it may have been possible for the plaintiffs to have proved that there were, at the times and stations named, or in the vicinity, empty cars, or cars which had reached their destination, and might have been emptied with reasonable diligence, but they could not know or prove, except by agents of the defendant, that any of such cars were not subject to prior orders or superior obligations. The ability of the defendant to so furnish with ordinary diligence upon the notice given, upon the principles stated, was as we think, peculiarly within the knowledge of the defendant and its agents, and hence the burden was upon it to prove its inability to do so. Where a shipper applies to the proper agency of a railroad company engaged in the business of such common carrier of live-stock for such cars to be furnished at a time and station named, it becomes the duty of the company to inform the shipper within a reasonable time, if practicable, whether it is unable to so furnish, and if it fails to give such notice, and has induced the shipper to believe that the cars will be in readiness at the time and place named, and the shipper, relying upon such conduct of the carrier, is present with his live-stock at the time and place named, and finds no cars, there would seem to be no good reason why the company should not respond in damages. Of course, these observations do not involve the question whether a railroad company may not refrain from engaging in such business as a common carrier; nor whether, having so engaged, it may not discontinue the same.

The court very properly charged the jury, in effect, that if all the cars had been furnished on time, as the two were, it was reasonable to presume, in the absence of any proof of actionable negligence on the part of the defendant, that they would have reached Chicago at the same time the two did, to wit, Thursday, October 19, 1882, A.M., whereas they did not arrive until Friday evening. This was in time, however, for the market in Chicago on Saturday, October 21, 1882. This necessarily limited the recovery to the expense of keeping, the shrinkage, and depreciation in value from Thursday until Saturday. Chicago etc. R. R. Co. v. Erickson, 91 Ill. 613; 33 Am. R. 70. The trial court, however, refused to so limit the recovery, but left the jury at liberty to include such damages down to Monday, October 23, 1882. For this manifest error,

and because there seems to have been a mistrial in some other respects, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

By the Court. Ordered accordingly.

AMONG CONNECTING LINES, THE CARRIER IN WHOSE HANDS THE GOODS IS FOUND DAMAGED, IS PRESUMED TO HAVE CAUSED THE DAMAGE, AND THE BURDEN IS ON SUCH CARRIER, TO REBUT THE PRESUMPTION

MORGANTOWN MANUFACTURING CO. V. OHIO RIVER AND CHARLESTON RAILWAY Co

121 N. C. 514 (1887)

FAIRCLOTH, C. J. A box of plate glass was shipped from New York City to Marion, North Carolina. The Pennsylvania Railroad Company, the initial carrier, received and transferred the case to the Norfolk & Western Road at Hagerstown. Then the car containing the box was transferred at Roanoke to the Cape Fear & Yadkin Valley Road and by them brought to the Seaboard Air Line Road at Sanford with the seal of the latter on the car at Shelby, North Carolina. At that place the agent of the defendant broke the seal and checked off the contents of the car on the waybill and examined the box and found it in apparent good order. He said in his testimony that there were no marks of rough usage on the outside of the box-that he took a copy of the waybill and delivered it to the defendant's conductor, who carried the car and copy of the waybill to Marion, and that he (the agent) marked the waybill O.K. also that he did not examine the contents of the box, and that his company did not require him to give a receipt for freight transferred to defendant from connecting lines. The defendant's agent at Marion testified that he received the box, and that the glass was not damaged in taking it off the car, nor while it was in the depot at Marion; that ten days thereafter he and plaintiff's agent opened the box and found the glass badly damaged. A contractor and builder examined the box, and said it must have fallen and struck something hard, causing the break in the glass.

The agent of the first carrier at New York sent a bill of lading with the package, stamped on its face "Released," and gave a receipt for the box "in apparent good order (contents and condition of contents unknown) to be transported to and delivered at the regular freight station of the company at subject to all the conditions," etc., among which were these words: "No carrier shall be liable for loss

.