104

may be a recovery.103 As to property having a special value, owing to particular circumstances, the carrier may be held liable for such special value, so far, at least, as reasonable and known to him.1 So, there are other cases, in which the damage resulting from failure of the carrier to perform his obligation can only be approximately estimated, and in such cases the best evidence obtainable will usually be received.10

$1919. Live stock-Burden of proof.-It is said that "the rules relating to the burden of proof in case of transportation of live stock are in principle the same as those with reference to goods, but some particular questions arise in their application. Thus, inasmuch as the carrier is not liable for death of animals during transportation due to natural causes, or to their inherent vice or natural disposition, mere proof that the animals died after delivery to the carrier and before the end of the transportation, is not sufficient to establish liability, but the evidence must further show that the loss was due to human agency. But if the loss or bad condition appears to have been due to human agency, then the carrier must show that it did not result from his negligence in order to escape liability on the ground that it was due only to delay or from causes within the common law exemption or within a valid particular limitation. But this he may do by general evidence of care and diligence in the transportation."106 There is some conflict among the authorities as to the burden of proof in cases of loss or injury to live stock; but the prevailing rule, where the owner or his agent does not go with the stock, is that when the animals are shown to have been delivered to the carrier in good condition, and to have been lost or injured on the way, the burden of proof rests upon the carrier to show that the loss or injury was not caused by its own negligence.107 There is much, however, that might

103

International &c. R. Co. v. Nicholson, 61 Tex. 550.

14 Cushing v. Wells, 98 Mass. 550; Winchell v. National Ex. Co., 64 Vt. 15, 23 Atl. 728; Missouri Pac. R. Co. v. Nevin, 31 Kans. 385, 2 Pac. 795.

Missouri Pac. R. Co. v. Sherwood, 84 Tex. 125, 19 S. W. 455, 17 L. R. A. 643; Clements v. Burling. VOL. 3 ELLIOTT Ev.-23

ton &c. R. Co., 74 Iowa 442, 38 N. W. 144.

100 6 Cyc. 524; see also, Boehl v. Chicago &c. R. Co., 44 Minn. 191, 46 N. W. 333; Hayman v. Philadelphia &c. R. Co., 8 N. Y. St. 86; Missouri Pac. R. Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239.

107 Louisville &c. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311, 3 Lewis

be said in favor of the opposite rule, where animals are injured and the plaintiff introduces no evidence to show how the injuries were inflicted or that any accident occurred to the train, or the like, and there is nothing to show that the injuries might not have been caused solely because of the inherent nature and propensities of the animals. This view is not entirely without the support of authority.108

§ 1920. Rule where owner accompanies stock. The fact that the owner, or his agent, is furnished transportation by the carrier and goes with his cattle or horses to look after and care for them, especially if he has agreed to do so in the contract of carriage, often exerts an important influence in determining the duties and liabilities of the carrier in the particular case, and is sometimes controlling upon the question as to the burden of proof or of producing evidence. It may relieve the carrier from the duty to feed and water and otherwise give particular attention to the stock ;109 although it will not relieve the carrier from the duty to afford the owner reasonable oppor

tunities for so doing. It may also be important upon the question of contributory negligence. So, where the owner accompanies the stock, under a special contract to care for them himself, he may well be presumed to be as well acquainted with the facts in regard to their loss or injury as the carrier, and as they may have been injured because of his own negligence, or because of their inherent nature and propensities, and not by the negligence of the carrier, it is but just to require him to show the facts. The rule in such cases, therefore, is that the burden of proof is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the loss, and if the carrier is liable only for negligence the burden is upon the plaintiff to show such negligence.110 So, it is said in several recent cases that the burden, under such circumstances, is on the shipper to establish that the damage or loss was not caused by his negligence.111 It has also been held that a railroad company is not liable as an insurer where the car in which animals are shipped is in the possession and control of their owner under a contract that he should take care of them; and that if they are injured by the act of the owner, the carrier is not liable, no matter whether such act was negligent or not.112 The court further held, in the case just referred to, that even if the special contract was prohibited by statute, and therefore invalid, there could be no recovery, 113

Terre Haute &c. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 55 Am. & Eng. R. Cas. 326, 17 L. R. A. 339; Clark v. St. Louis &c. R. Co., 64 Mo. 440; McBeath v. Wabash &c. R. Co., 20 Mo. App. 445; St. Louis &c. R. Co. v. Weakly, 50 Ark. 397, 7 Am. St. 104, 117, 8 S. W. 134; Louisville &c. R. Co. v. Hedger, 9 Bush. (Ky.) 645; Boehl v. Chicago &c. R. Co., 44 Minn. 191, 46 N. W. 333.

Chicago &c. R. Co. v. Williams, 61 Neb. 608, 85 N. W. 832; Louis

ville & N. R. Co. v. Harned, 23 Ky. L. R. 1651, 66 S. W. 25; Texas &c. R. Co. v. Arnold, 16 Tex. Civ. App. 74, 40 S. W. 829.

112 Hart v. Chicago &c. R. Co., 69 Iowa 485, 29 N. W. 597; but compare, McDaniel v. Chicago &c. R. Co., 24 Iowa 412; Peters v. New Orleans &c. R. Co., 16 La. Ann. 222; Moulton v. St. Paul &c. R. Co., 31 Minn. 85, 47 Am. R. 781.

113 See also, Roderick v. Railroad Co., 7 W. Va. 54.

§ 1921. Generally.-"Case" is really a generic term embracing different species of actions adopted or framed under the statute of Westminster 2,1 but in its narrower sense it is usually taken as meaning a particular form of action ex delicto known as the action of case or trespass on the case, which lies to recover damages for a tort. It lies, in general, to recover damages. "An action on the case lies to recover damages for torts not committed by force, actual or implied, for torts committed by force, actual or implied, where the matter affected was not tangible or the injury was not immediate, but consequential, or the interest in the property injured was only in reversion. Torts of this nature are to the absolute rights of persons, to the relative rights of persons, to personal property in possession or reversion, to real property, corporeal or incorporeal, in possession or reversion. The injuries may be caused either by nonfeasance, or the omission of some act which the defendant ought to perform, by misfeasance, or the improper performance of some act which might be lawfully done, by malfeasance, or the doing of something that ought not to be done at all."* Case is the usual remedy for injuries caused by negligence, especially to recover damages from the master for injuries caused by the wrong of his servant which are not the immediate and natural consequences of an act ordered by the master. It is also the ordinary

113 Edw. I, c. 24.

91. As a general, but not an invari

** Shipman Com. L. Pl., pp. 86, able rule, case lies where the injury 88. was negligently inflicted by the defendant and trespass where it was wilfully inflicted. This, however, is not a sure test.

2 Schuer V. Veeder, 7 Blackf. (Ind.) 342; Andrew, Stephen Pl. 136; Shipman Com. L. Pl. (2d ed.)

form of action to recover damages or a penalty for an injury as provided by statute where the statute is silent as to the form of action.3 So, it is the usual form of action for libel or slander, for injury to health or comfort by a nuisance," for special damages to an individual by the obstruction of a watercourse or highway, and the like. As shown, in the chapter on assumpsit, there is often both a breach of contract and a violation of a duty constituting a tort, and there may be an election to sue on either the one theory or the other. There may also be an election, in some instances, between different forms of action ex delicto, as between case and trover or replevin, but here, too, the theory adopted will determine the form of action, and the distinction between these different forms is obvious. The most difficult distinction to draw is between case and trespass where it depends upon the question of force. As a general rule trespass lies where the injury is the immediate result of unlawful force, which may be either actual, or, in some instances, implied, while case will usually lie even where there has been unlawful force, if the injury is consequential and not immediate. A familiar illustration is that of a log being thrown into a street. If, in being thrown it strikes a traveler the injury is the direct result of the force, and trespass is the proper remedy; but if one afterwards comes along and falls over it, while it is lying in the highway in the dark, the injury is regarded as consequential, and his proper remedy is case." "As regards the directness. of the injury which will distinguish a case in trespass from one in which the remedy must be sought in an action on the case," says Judge Cooley, "there seems to be no better test than this: That if the unlawful force caused the injury before it was spent, this injury must be deemed direct, but if, after the unlawful force was spent, the injury occurred as a collateral or secondary consequence, it must be considered as indirect." But even as between case and trespass

978

'County of Chester v. Brower, 117 ley v. Codling, 9 Moore 489; see Pa. St. 647, 2 Am. St. 713; Friend V. Dunks, 37 Mich. 25; Scidmore v. Smith, 13 Johns. (N. Y.) 322; Marshalsea, The, 10 Coke, 75 b.; President &c. v. Salmon, 2 Salk. 451.

also, Bellant v. Brown, 78 Mich. 294, 44 N. W. 326; Hamilton v. Plainwell Water &c. Co., 81 Mich. 21, 45 N. W. 648; Williams v. Morland, 2 B. & C. 910; Rose v. Miles, 4 M. & S. 101.

'Leame v. Bray, 3 East 602; Reynolds v. Clarke, 1 Str. 636; Green v. Belitz, 34 Mich. 512.

Cooley Torts, 439. See the fam