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of negligence if it failed to adopt the most approved modes of construction and machinery in known use in the business, and the best precautions in known practical use for securing safety; and that if there was known, and in use, any apparatus which, when applied to an engine, would enable it to consume its own sparks and thus prevent them from igniting goods in the company's charge, it was negligent if it did not avail itself of such apparatus; but that it was not bound to use every possible prevention which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction. And it was said that there must exist, not only the scientific power to make locomotives which would consume their own sparks, but such locomotives must have been made and put into practical use before a railway company could be charged with negligence in not putting them on its road.28

The rule in such cases is that when the plaintiff has shown that the fire which has caused the damage originated from sparks escaping from the locomotive of the defendant, a prima facie case of negligence is established which may be rebutted by evidence showing that the locomotive was supplied with a spark arrester or other appliance for preventing the escape of sparks such as was approved and used by railroads generally, and that the locomotive was carefully and skillfully handled by the carrier's agents or employes. 29

Sec. 504. (§ 295.) Liability of carrier for using exposed cars.-In Levering v. Union Transportation Company,30 where cotton, being carried by railroad under a bill of lading which provided that it was carried “at the owner's risk of fire,” was destroyed by fire in the course of the transit in one of the company's cars, it was held that if the loss were attributable to its being in a car which was not safe and suitable to protect it against such an accident, the company was liable, notwithstanding the exception in its bill of lading. And in The New Jersey S. Co. v. Merchants’ Bank, 31 one of the grounds upon which the carrier was denied the benefit of the exception against risks in his contract was, that he had not provided himself with a safe vessel, nor with the appliances for the extinguishment of fire which the law of congress required. So where merchandise was being carried in the same train with an exceedingly inflammable oil, which was set on fire by sparks from the locomotive, and owing to some defect in the coupling of the cars they could not be separated in time to prevent the burning of the car in which the merchandise was loaded, it was held that the defect in the coupling was negligence in the company, and that it was liable, notwithstanding its receipt provided that the shipper should take all risks of fire.32

28. Ford v. Railway Co., 2 Fos. Association v. Loeb, 1 Tex. Ct. Rep. & Fin. 730; Hegeman v. Railroad, 537, 59 S. W. Rep. 617, citing Rail3 Ker. 9; Field v. Railroad, 32 N. way Co. v. Johnson, 92 Tex. 591, Y. 339.

50 S. W. Rep. 563. 29. Otis Co. v. Railway Co., 112 30. 42 Mo. 88. Mo. 622, 20 S. W. Rep. 676; Fire

Sec. 505. ($ 295a.) Duty in respect to providing refrigerator or ventilated cars.-If the goods are of such a nature as to require for their protection some other kind of car than that required for ordinary goods, and cars adapted to the necessity are known and in customary use by carriers, it is the duty of the carrier where he accepts the goods to provide such cars for their carriage.33 This rule, of course, would not

31. 6 How. 344. See the opinion ter in common cars would be greatof Woodbury, J.

ly injured by the ordinary heat of 32. Empire T. Co. v. Wamsutta the climate; and that the butter, Oil Co., 63 Penn. St. 14.

as it approached its destination, 33. Beard V. Railway Co., 79 would be subject, by reason of the Iowa, 518. In this case a carrier change of latitude, to greatly inreceived for transportation creased heat from the weather. All quantity of butter to be shipped these things are familiarly known to New Orleans, and sent it for- to all men. Surely, the law will ward in a common car without ice presume that defendant's emor other protection, whereby it was ployees had full knowledge there injured. In its opinion the court of. The law required the defendsaid: “In the case before us the ant, having received the perishmarks on the package and the way- able cargo involved in this suit, bill disclosed that the subject of to exercise the care and diligence shipment was butter. The em- necessary to protect it; and, if ployees of defendant were endowed improved cars for the transportawith intelligence which taught them tion of articles of commerce liable that the season was summer, when to injury from heat were in use, warm weather prevailed; that but it was defendant's duty to use


extend to compelling a carrier by wagon to equip his wagon with absolute safeguards against undue heat or cold, since “it would be unreasonable to measure the duty of an ordinary freighter in providing vehicles for the transportation of perishable property with that of a company contracting for transportation across the continent by rail.' 34 But undoubtedly under modern methods in the case of carriers by rail, the rule would extend to proper refrigeration according to the established custom.35 And the same would be true of modern ocean going vessels.36

It is competent, of course, for the carrier and shipper to enter into a special contract designating the manner in which perishable property is to be carried, and if the carrier should




such cars in carrying the butter. would have protected it, the car.

.. Having accepted the butter rier was held liable for not using for transportation, defendant can. the refrigerator car. not escape liability for not safely Merchants' Despatch Co. transporting it on the ground that Cornforth, 3 Col. 280. it did not have cars sufficient for 34. Carr v. Schafer, 15 Colo. 48, the purpose.”

24 Pac. Rep. 873. “These views are supported," 35. Johnson v. Railway Co., 133 said the court, "by the following Mich. 596, 95 N. W. Rep. 724, 10 among other

Hewett Det. L. N. 324, 103 Am. St. Rep. Railway Co., 63 Iowa, 611; Sager 464; Railroad Co. v. Cromwell, 98 v. Railroad Co., 31 Me. 228; Hawk- Va. 227, 35 S. E. Rep. 444, 49 L. ins v. Railway Co., 17 Mich. 62, 18 R. A. 462, 81 Am. St. Rep. 722; Mich. 427; Railroad Co. v. Pratt, Popham v. Barnard, 77 Mo. App. 22 Wall. 123; Wing v. Railway Co., 619; Udell t. Railroad Co., 13 Mo. 1 Hilt. 241; Transportation Co. v. App. 254. But see Wetzell v. RailCornforth, 3 Col. 280. As to the road Co., 12 Mo. App. 599, and duty of defendant to use cars so Tucker v. Railroad Co., 33 N. Y. constructed and used as to avoid Supp. 93, 12 Misc. 117; s. c. 32 injury from heat, see Boscowitz v. N. Y. Supp. 1, 11 Misc. 366, reExpress Co., 93 Ill. 525; Steinweg versing 30 N. Y. Supp. 811, 10 v. Railway Co., 43 N. Y. 123." Misc. 35. See also, as to ventilated

So where a carrier accepted for cars, Davenport v. Railroad Co., transportation in winter time a 173 Pa. St. 398, 34 Atl. 59 and quantity of delicate fruit, likely Giles v. Fargo, 60 N. Y. Super. Ct. to be injured by freezing unless 117, 17 N. Y. Supp. 576. protected, and sent it on in a com- 36. The Maori King v. Hughes, mon box-car, whereby it was in- (1895) 2 Q. B. 550, 65 L. J. Q. B. jured, when a refrigerator car 168, affirming 64 L. J. Q. B. 744.

undertake to carry such property in cars specially adapted to preserve it, he would become responsible for any defects in the cars resulting in injury to the property.37 And although the shipper may discover before the departure of a car that a special stipulation in the contract, such as that the car shall be iced and re-iced as often as necessary, has been insufficiently carried out by the carrier, he will not on that account assume any risk of loss where he has no opportunity of relieving the situation and he honestly believes the property will reach its destination in good order.38

If the shipper undertakes to supply a refrigerator car with ice, the carrier has the right to assume, unless the facts are such as to put him on notice to the contrary, that the shipper has furnished a sufficient quantity of ice to keep the car cool until a delivery to the consignee can, in the ordinary course of business, be made. But the nature of the service in such a case also gives rise to an implication that the carrier will exercise a proper degree of care, where actual delivery has been delayed beyond the usual time, in protecting the property from injury by the heat.39

Sec. 506. (§ 295b.) When carrier may use open or closed cars.—So it is the duty of the carrier to have and use such vehicles as are reasonably adapted to protect the goods from inclemencies of the weather and from loss by theft or otherwise. Certain classes of goods, for example, may properly be transported upon open cars; while to so transport goods liable to be injured by rain or snow or to be abstracted by thieves along the route might be gross negligence.

Under his common-law liability as an insurer, the duty of properly protecting the goods against such losses as these exists for his own protection, but even under contracts limiting his liability, the reasonable care which the law still de

37. Railroad Co. v. Davis, 54 Ill. 38. Johnson v. Railway Co., 133 App. 130; affirmed in 159 Ill. 53, Mich. 596, 95 N. W. Rep. 724. 42 N. E. Rep. 382, 50 Am. St. Rep. 39. Railway Co. v. Reyman, 143; Perishable Freight Trans Ind. 73 N. E. Rep. 587. portation Co. 0. O'Neill, 41 Ill. App. 423.

mands will require proper attention to the subject of such protection. 40

Sec. 507. Bullion room on vessel for carriage of precious metals must be reasonably safe.—If gold or other precious metals are to be carried in a vessel, and it is in the contemplation of both parties to the contract that the gold is to be carried in a bullion room, there is an implied warranty that the bullion room in which the gold is stored is so constructed as to be reasonably fit to resist thieves. 41

Sec. 508. How where shipper selects the vehicle himself.As we have seen, the duty of furnishing suitable vehicles rests upon the carrier and not upon the shipper, and the failure to discharge this duty is negligence from the consequences of which the carrier is not permitted to free himself by a stipulation in the bill of lading which devolves upon the shipper the duty of selecting vehicles which are suitable. Such a stipulation is void as an attempt by the carrier to limit his liability against his own negligence in providing defective vehicles. 42

40. Sending cotton on open cars Steam Nav. Co., (1898) 1 Q. B. when fires are raging along the 567, 67 Law J. Q. B. 402, 78 Law track is negligence. Insurance Co. T. (N. S.) 67, 8 Asp. 338. V. Railway Co., 3 McCrary, 233. 42. Railway Co. v. Pratt, 89 U. It is not negligence to carry on S. 123, 22 L. Ed. 827; Railway Co. an open car goods packed in a v. Marshall, Ark.

86 S. case too long for a box car W. Rep. 802; Railway Co. v. Harproper precautions are taken to well, 91 Ala. 340, 8 So. Rep. 649; protect them from the weather. Railroad Co. v. Davis, 159 Ill. 53, Burwell v. Railroad Co., 94 N. C. 42 N. E. Rep. 382, 50 Am. St. Rep. 451.

143; Railroad Co. v. Holland, 162 To carry oil in open cars where. Ind. 406, 69 N. E. Rep. 138, 63 by the barrels in which the oil L. R. A. 948; Railroad Co. v. Dies, was were exposed to the sun and 91 Tenn. 177, 18 S. W. Rep. 266, weather, and were destroyed in 30 Am St. Rep. 871; Railway Co. violation of a contract to carry v. Fairbanks, 90 Fed. 467, 33 C. in covered cars, was held to be C. A. 611. such negligence as to estop the “The individual, in a sense, is carrier from setting up his ex- compelled to accept of whatever emption in the bill of lading that is offered him by the carrier and "oil was carried at the owner's cannot refuse it without, perhaps, risk.” Railway Co. v. Fitzgerald destroying his interests. It is the (Can.) 5 S. C. R. 204.

carrier's duty to furnish suitable 41. Queensland & Nat. Bank v. cars for the transaction of his

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