Whether the agent made the promise or not, the duty of the company was to forward the freight thus received, using due diligence for this purpose, and it had no higher one in consequence of the promise. There was no new agreement at Chattanooga for freight, or for any other purpose. The freight had been arranged at Salisbury, and was to be collected at Memphis, the terminus. The promise was a vol unteer statement merely, undum pactum.
But admit that there was a contract to forward on the evening of the 5th, the damage occasioned by the flood on the 6th cannot be referred to a violation of that contract. This is the view taken by the Supreme Court of Pennsylvania in Morrison v. Davis, [1] and by the Supreme Court of Massachusetts, in Denny v. New York Central Railroad Company, cases analogous, both, to ours. [2]
All the instructions asked for by the defendant ought therefore to have been given. Though the proximate cause may be occasioned by inevitable accident, the carrier is still bound to care and diligence. Yet no greater foresight of extraordinary perils is expected of him than of other men, and no greater penalty visited for its failure. When he discovers himself in peril, the law requires of him ordinary care, skill, and foresight. This is defined to be the common prudence which men of business and heads of families usually exhibit in matters that are interesting to them. As difficulties increase in danger, great care then becomes the ordinary care of a prudent man. If one uses the precautions which a reasonable man would use under the circumstances, he is not responsible for omitting other precautions which are conceivable, even though if he had used them the injury would certainly have been avoided.
Now as to the question of proof of negligence. The rule is admitted to be that the burden of proof is on the carrier to show that the loss was occasioned by a cause for which he is not responsible. When, however, the evidence brings the loss within the excepted danger, the onus probandi is changed. It is then upon the plaintiff to show that the danger might have been avoided by the exercise of reasonable skill and attention of the carrier. [3]
The case shows that due diligence and care were used to avoid the threatened danger.
Messrs. Albert Pike and R. W. Johnson, contra:
1. It does not appear that any exceptions were taken or points reserved during the trial. The bill of exceptions sets out five instructions to the jury, asked by the defendant below, and refused by the court, covering some pages. These the court refused, and gave a charge in regard to the law in general as to the responsibilities of common carriers, and as to the case in hand upon the facts proven.
The bill of exceptions was taken three days after the motion for a new trial was overruled, and twenty-three days after the trial concluded. Now, does the word 'excepted' necessarily show that the exception was taken during the trial? It is not said that the company excepted at the time; and the court cannot presume that it did, in the absence of any statement, even the most vague, to that effect. On the contrary, as the statement is that the defendant also excepted to the overruling of his motion for a new trial, without saying that this was at a different time, the court must hold that there was no exception at all taken until that motion was overruled.
Now a bill of exceptions must be upon points expressly reserved and excepted to at the trial, otherwise they are waived, as a bill of exceptions originally was, if not presented at the trial. That was the rule under the statute of Westminster. If the exception was not stated in writing, and tendered at the trial, it was considered as waived, and the party could not resort to it after a verdict against him. Wright v. Sharp, [4] is conclusive on that point. Holt, C. J., said there:
'If this practice should prevail, the judge would be in a strange condition; he forgets the exception, and refuses to sign the bill, so an action must be brought; you should have insisted on your exception at the trial; you waive it if you aquiesce, and shall not resort back to your exception after a verdict against you. . . . The substance must be reduced to writing while the thing is transacting, because it is to become a record.'Little profit accrues to the law by the abandonment of its old principles. It is not safe to trust the memory of a judge engaged in trying a multitude of cases, even for a week, in regard to the evidence given or refused, or to the language he may have used in directing the jury. We submit, therefore, that there is no bill of exceptions here, on which the court can act; and that the judgment below must necessarily be affirmed.
If the court should think that the single word 'excepted' has virtue enough to authorize it to conclude that the record shows affirmatively that the exceptions were taken on the trial, then we object that the exceptions are such as the rules of the law, and its own rules, will not permit the court to consider. They are sweeping and indiscriminate, being to the refusal to give long instructions, and to the giving of pages of legal principles and propositions in their stead. It surely will be at some time understood that this court will not look into a case which thus brings up a mass of instructions given and refused, and in which the party has put his finger on no particular errors. It is directly contrary to rule No. 4; and it is equally contrary to the law, and to the practice of all appellate courts of respectability. The rule will cease to be disregarded when it is rigidly enforced. To dispense with it, or overlook disobedience of it, on account of particular circumstances, makes it mere brutum fulmen.
There is no doubt that some portions, at least, of the charge and directions of the judge below, in this case, were correct in point of law. If he stated one correct proposition, the exception to his charge falls. [5]
2. Of the contract made at Chattanooga, and the law as to common carriers, as set forth in the instructions given.
The court instructed the jury that if the agent having charge of freights and their transshipment did make such a contract, it bound the company. This was right. The testimony shows that the company sent only one freight train each day, and that in the morning; but it could certainly send a car in the evening, with the freight train of the Nashville and Chattanooga road, if it chose to pay for the service; and if its agent contracted with a party owning freight to do so, the company would be responsible for all damage caused by the delay.
So the instructions as to the liability of the company as a common carrier. No matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled, or the force by which it is overcome is inevitable, yet if it be the result of human means, the carrier is responsible. [6] In Campbell v. Morse, [7] one Deft's wagon, in which he was carrying for hire, stuck fast in fording a creek, and the water, rising suddenly, damaged the goods; but he was held responsible. So in Bason v. Charleston & Columbia Steamboat Company, [8] where a steamboat grounded from reflux of tide, and in consequence fell over, and the bilge-water, rising into the cabin, produced injury to the goods.
Denny v. New York Central Railroad Company, cited on the other side, is not against these cases, because the court there held that when the damages by flood occurred, the defendants no longer held the goods as common carriers.
In fact, the moment a faulty negligence begins, the carrier becomes an insurer against the consequences therefrom, both ordinary and extraordinary. [9] If he improperly detains goods, and they are injured by a sudden and extraordinary rise of water, the detention being negligence, he is responsible. To relieve him there must be an entire exclusion of human agency from the cause of the injury or loss. [10] In Read v. Spaulding, cited below, the goods were injured by a flood, being delayed at a point in transitu.
The fact, which in this case, with the windows of heaven opened, and the torrents descending day after day, ought to have been anticipated by the agents of the company, that the flood was coming, should have increased and stimulated their vigilance and caution, and if by any known means they could have prevented the damage, they should have done so. [11] What if the floods never did, within their memory or their records, rise so high? These calamities, like great fires in cities, are encyclical. They come at long intervals only; often very long intervals. But come at some time they surely will, and on such a premonition as was had here, the company should not have stood 'stupidly gazing' at the menacing clouds till they burst and deluged the land. They should have moved the cars off at once to the farthest and highest spot possible, and if one route was blocked they should have gone in another.
When the negligence of the carrier exposes him to what he might otherwise have escaped, he is responsible for losses thus occurring through the combined agency of his own negligence and of inevitable accident. If his own neglect is the proximate cause of the peril being incurred, he is responsible. If he could have removed the property injured, beyond the reach of flood or fire, and so have escaped from that cause of loss, but did not do so, then, although the flood or fire was the act of God, yet the injury or loss was really caused by his negligence, and the accident was not inevitable. The fact that the carrier has done what is usual, is not sufficient to exempt him from a charge of negligence. He must show that he has done what was necessary to be done under all the circumstances. If he could have prevented the accident by the exercise of due diligence and care, and did not, he is liable. [12]
Mr. Phillips in reply: No doubt the bill of exceptions is open to animadversion, as not in good technical form. But it is certain that the exception to the action of the judge was a 'proceeding,' and a very important one, and the opening of the bill declares that all the 'following proceedings' were had 'on the trial of the cause.'
It is again said, that the exceptions are too general, and that they should have been specifically made to the several charges. It is to be observed that the charges were asked in the first place by the defendant. These were rejected, and the defendant excepted. Then the court gave several charges, all involving the single question of negligence. The substance of these was a denial of the doctrine asserted in the prayers of the defendant, and to these instructions the defendant also excepted.
It is evident that the charges given are in direct response to the charges asked and refused, and no revision is now asked which involves a question that was not distinctly presented to the court below.
The court will not allow the right of review to be defeated because of any mere informality or irregularity in the mode in which the exceptions had been presented. [13]
Mr. Justice MILLER delivered the opinion of the court.
A preliminary point is raised by the defendant in error that the exception was not taken at the trial, but was taken afterwards on the overruling of a motion for a new trial.
It seems probable that the formal bill of exceptions was not signed or settled until after the motion was overruled, but it is a common practice, convenient in dispatch of business, to permit the party to claim and note an exception when the occasion arises, but defer reducing it to a formal instrument until the trial is over. We think the language of the bill implies that this was done in the present case, and that it is a reasonable inference from the language used at the beginning and end of this bill, that the exceptions were taken during the trial, as the rulings excepted to were made.
Comment is also made, that the exception does not point out to which instruction it is taken, nor to any special part of the charge which was given. But the instructions prayed by defendant were not offered as a whole, but each one for itself, and the action of the court in refusing them, to which exception is taken, may be fairly held to mean each of them.
As to the charge given by the court, the language of the exception is more general than we could desire. And if the errors of this charge were less apparent, or if there was any reason to suppose they were inadvertent, and might have been corrected if specified by counsel at the time, we would have some difficulty in holding the exception to it sufficient. But the whole charge proceeds upon a theory of the law of common carriers, as it regards the effect of loss from the act of God, on the contract, so different from our views of the law on that subject, that it needs no special effort to draw attention to it, and it is so clearly and frankly stated as to have made it the turning-point of the case.
We are of opinion, then, that both the refusal to charge as requested and the charge actually given are properly before us for examination. As regards the first, we will only notice one of the rejected instructions, the fourth. It was prayed in these words:
'When the damage is shown to have resulted from the immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the case.'
It is hard to see how the soundness of this proposition can be made clearer than by its bare statement. A common carrier assumes all risks except those caused by the act of God and the public enemy. One of the instances always mentioned by the elementary writers of loss by the act of God is the case of loss by flood and storm. Now, when it is shown that the damage resulted from this cause immediately, he is excused.
What is to make him liable after this? No question of his negligence arises unless it is made by the other party. It is not necessary for him to prove that the cause was such as releases him, and then to prove affirmatively that he did not contribute to it. If, after he has excused himself by showing the presence of the overpowering cause, it is charged that his negligence contributed to the loss, the proof of this must come from those who assert or rely on it.
The testimony in the case, wholly uncontradicted, shows one of the most sudden, violent, and extraordinary floods ever known in that part of the country. The tobacco was being transported from Salisbury, North Carolina, to Memphis, on a contract through and by several railroad companies, of which defendant was one. At Chattanooga it was received by defendant, and fifteen miles out the train was arrested, blocked by a land slide and broken bridges, and returned to Chattanooga, when the water came over the track into the car and injured the tobacco.
The second instruction given by the court says that if, while the cars were so standing at Chattanooga, they were submerged by a freshet which no human care, skill, and prudence could have avoided, then the defendant would not be liable; but if the cars were brought within the influence of the freshet by the act of defendant, and if the defendant or his agent had not so acted the loss would not have occurred, then it was not the act of God, and defendant would be liable. The fifth instruction given also tells the jury that if the damage could have been prevented by any means within the power of the defendant or his agents, and such means were not resorted to, then the jury must find for plaintiff.
In contrast with the stringent ruling here stated, and as expressive of our view of the law on this point, we cite two decisions by courts of the first respectability in this country.
In Morrison v. Davis & Co., [14] goods being transported on a canal were injured by the wrecking of the boat, caused by an extraordinary flood. It was shown that a lame horse used by defendants delayed the boat, which would otherwise have passed the place where the accident occurred in time to avoid the injury. The court held that the proximate cause of the disaster was the flood, and the delay caused by the lame horse the remote cause, and that the maxim, causa proxima, non remota spectatur, applied as well to contracts of common carriers as to others. The court further held, that when carriers discover themselves in peril by inevitable accident, the law requires of them ordinary care, skill, and foresight, which it defines to be the common prudence which men of business and heads of families usually exhibit in matters that are interesting to them.
In Denny v. New York Central Railroad Co., [15] the defendants were guilty of a negligent delay of six days in transporting wool from Suspension Bridge to Albany, and while in their depot at the latter place a few days after, it was submerged by a sudden and violent flood in the Hudson River. The court says that the flood was the proximate cause of the injury, and the delay in transportation the remote one; that the doctrine we have just stated governs the liabilities of common carriers as it does other occupations and pursuits, and it cites with approval the case of Morrison v. Davis & Co.
Of the soundness of this principle we are entirely convinced, and it is at variance with the general groundwork of the court's charge in this case.
As the case must go back for a new trial, there is another error which we must notice, as it might otherwise be repeated. It is the third instruction given by the court, to the effect that if defendant had contracted to start with the tobacco the evening before, and the jury believe if he had done so the train would have escaped injury, then the defendant was liable. Even if there had been such a contract, the failure to comply would have been only the remote cause of the loss.
But all the testimony that was given is in the record, and we see nothing from which the jury could have inferred any such contract, or which tends to establish it, and for that reason no such instruction should have been given.
JUDGMENT REVERSED AND A NEW TRIAL ORDERED.
Notes edit
- ↑ 20 Pennsylvania State, 171.
- ↑ 13 Gray, 487.
- ↑ Clark et al. v. Barnwell, 12 Howard, 280.
- ↑ 1 Salkeld, 288.
- ↑ Rogers v. The Marshal, 1 Wallace, 645; Harvey v. Tyler, 2 Id. 328.
- ↑ McArthur v. Sears, 21 Wendell, 196; Sherman v. Wells, 28 Barbour, 403; Ferguson v. Brent, 12 Maryland, 9.
- ↑ 1 Harper's Constitutional, 468.
- ↑ Id. 262.
- ↑ Davis v. Garrett, 6 Bingham, 716; Bell v. Reed, 4 Binney, 127; Hart v. Allen, 2 Watts, 114; Williams v. Grant, 1 Connecticut, 492; Crosby v. Fitch, 12 Id. 410.
- ↑ Michaels v. Central Railroad Company, 30 New York, 570; Read v. Spaulding, 30 Id. 630; Merritt v. Earle, 29 Id. 115.
- ↑ Gordon v. Buchanan, 5 Yerger, 82.
- ↑ Wing v. New York & Erie Railroad Company, 1 Hilton 235.
- ↑ Simpson & Co. v. Dall, 3 Wallace, 460.
- ↑ 20 Pennsylvania State, 171.
- ↑ 13 Gray, 481.
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