Binn. 127; Hollingworth v. Brodrick, 7 Ad. & El. 40; Story on Bailm. § 413 a-413 d.
1 Whitesides v. Russell, 8 Watts & Serg. 44.
2 Smith v. Shepherd, cited supra; King v. Shepherd, 3 Story, 357; Schieffelin v. Harvey, 6 Johns. 170; Elliott v. Rossell, 10 Johns. 1; Williams v. Branson, 1 Murph. 417; Jones v. Pitcher, 3 Stew. & Port. 171, 180; Campbell v. Morse, Harp. 468.
3 King v. Shepherd, 3 Story, 354; Waters v. Merchants1 Louisville Ins. Co., 11 Peters, 213. See also Thompson v. Whitmore, 3 Taunt. 227.
4 Jones v. Pitcher, 3 Stew. & Port. 135, 176; Whitesides v. Russell, 8 Watts & Serg. 44; McGregor v. Kilgore, 6 Ohio, 358; Johnson v. Friar, 4 Yerg. 48; Turney v. Wilson, 7 Yerg. 340; Angell on Carriers, § 168.
5 Williams v. Branson, 1 Murph. 417; Whitesides v. Russell, 8 Watts & Serg. 44.
§ 930. But if, from the nature of the goods taken, they are liable to peculiar risks, and the carrier employs the utmost caution, and yet they are destroyed, he is excusable. Thus, where horses or other animals are transported by water, and in consequence of a storm they break down the partitions between them and kick each other to death, the carrier will be excusable, on the ground that it is a loss by "perils of the sea." 5 And it has been held that the business of a "common carrier " does not, in and of itself, impose the duty of carrying live cattle, unless the carrier has assumed such duty by contract or custom, or it has been imposed upon him by law.6
1 De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734; 14 Eng. Law & Eq. 327, and Bennett's note.
2 Laurie v. Douglas, 15 M. & W. 746.
3 Whitesides v. Thurlkill, 12 Sm. & M. 599. And see Marsh v. Blyth, 1 Nott & M'C. 170; Marsh v. Blythe, 1 M'Cord, 360. But a collision, though without the carrier's fault, has been held not to excuse him in the absence of any exception in his contract of carriage. Plaisted v. Boston & Kennebec Steam Nav. Co., 27 Me. 132; Mershon v. Hobensack, 2 Zab. 372.
4 Hays v. Kennedy, 41 Penn. St. 378 (1861). But this decision called out a vigorous dissenting opinion of Mr. Justice Thompson, reported in 3 Grant, 356 (1862), who held, upon a critical examination of the authorities, that if human agency was the cause, the carrier was not exempt. And see Lawrence v. M'Gregor, Wright, 193.
5 Gabayr. Lloyd, 3 B. & C. 793; Lawrence v. Aberdein, 5B. & Al. 107. 6 The Michigan Southern Railroad v. McDonough, 21 Mich. 166 (1870), containing a very interesting discussion of this subject by Christiancy, J.
§ 931. A common carrier is liable for all losses occasioned by accidental fire,1 or theft, robbery, and embezzlement by his own servants, or by other persons, although he may have used every precaution to prevent such occurrences. And in all cases the burden of proof is on him to exempt himself from liability by placing the loss within the excepted cases; for, if the goods have never been delivered to the bailor, or his agent, or his consignee, the presumption is, that they have been lost by negligence.2 But the burden of showing such non-delivery is on the plaintiff.3 And if it be proved or admitted that the loss occurred from one of the excepted causes, such as flood or fire, for instance, the burden of proving negligence in the carrier is always upon the plaintiff.4 For whenever the carrier proves that the loss occurred from one of the excepted cases in his contract, such as the dangers of navigation, for instance, the plaintiff may still recover, if he can show that such loss nevertheless arose from want of due care or attention on the part of the carrier; the burden of proof being, as already stated, on the plaintiff to show this.6 There is no difference, as to his liability at the common law, between cases of theft and of robbery by violence.1 And if a special contract be made, exempting the carrier in case of loss by "robbery," this will not exonerate him if the loss be by theft, without force.2
1 See Morewood v. Pollok, 1 El. & B. 743; 18 Eng. Law & Eq. 341, and Bennett's note. See also Miller v. Steam Nav. Co., 6 Seld. 431; Cox v. Peterson, 30 Ala. 608; Moore v. Michigan Central Railroad, 3 Mich. 23; Graff v. Bloomer, 9 Barr, 114; Swindler v. Hilliard, 2 Rich. 286: Hale v. New Jersey Steam Nav. Co., 15 Conn. 539; Gilmore v. Carman, 1 Sm. & M. 279; Parker v. Flagg, 26 Me. 181.
2 Story on Bailm. § 529, and cases cited; King v. Shepherd, 3 Story, 356; Forward v. Pittard, 1 T. R. 27, 33; Murphy v. Staton, 3 Munf. 239; Gilbart v. Dale, 5 Ad. & El. 543; Griffiths v. Lee, 1 C. & P. 110; Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Peters, 181; Atwood v. Reliance Transp. Co., 9 Watts, 87; Hastings v. Pepper, 11 Pick. 41; White-sides v. Russell, 8 Watts & Serg. 44; Hall v. Cheney, 36 N. H. 27; Schooner Emma Johnson, 1 Sprague, 527; Davidson v. Graham, 2 Ohio St. 131; Van Winkle v. South Carolina Railroad, 38 Ga. 32.
3 Woodbury v. Frink, 14 I11. 279; Ringgold v. Haven, 1 Cal. 108; Cameron v. Rich, 4 Strob. 168; Midland Railway v. Bromley, 17 C. B. 376; 33 Eng. Law & Eq. 235.
4 Railroad Co. v. Reeves, 10 Wall. 176 (1869); Farnham v. Camden & Amboy Railroad, 55 Penn. St. 59; Colton v. Cleveland & Pittsburgh Railroad Co., 67 Penn. St. 211 (1870); Patterson v. Clyde, ib. 500 (1871), distinguishing Whitesides v. Russell, 8 Watts & Serg. 44, and Hays v. Kennedy, 41 Penn. St. 378.
5 Transportation Co. v. Downer, 11 Wall. 129 (1870), affirming Clark v. Barnwell, 12 How. 272.
§ 932. A carrier may, however, be a common carrier in some respects, and a private carrier in others.3 Thus, if he be a common carrier of dry goods only, and money be sent by him, he will be responsible, in regard to the money, only for ordinary diligence, being, in respect thereof, only a private carrier. But if he be accustomed to carry both, or if it be the usage of trade to carry both, he will be responsible as a common carrier.4 Thus, stage-coachmen, or masters of a steamboat, holding themselves out as carrying merchandise and goods of a certain kind for hire, will be common carriers as to such goods; but if it be not their usual occupation and habit to carry money and bank-bills, and in a special case they do carry them, and receive a compensation therefor,5 they will only be private carriers in respect to the money, and responsible for ordinary diligence. This would be specially the case where the coachman or steamboat master is acting as agent for the proprietors.6