"Now, there is no doubt that if there is any deception, or any improper package sent by the plaintiff, the defendants are not liable for a damage arising to it; but, if there is any deception as to the value, the defendants are not liable. As to that, the defendants are competent to limit, and they do limit by their notice, their liability with respect to certain valuable commodities; and, with respect to dangerous articles, there is provision made that they may examine the parcel if they think fit, and, whenever there is a good reason to suspect the contents, they may either insist on being informed of the nature of them, or, if the information is refused, they may say, 'then we must open it ourselves,' or ' we will not take it;' but it cannot be maintained that in all cases the carrier may require the person to give him a full description of every article in it. On these grounds, I think this plea, which sets out the ground of refusal, is invalid in law, and that the plaintiff is entitled to our judgment." malfeasance, or wrong delivery, if not for negligence.1 And we have already seen that where a notice is given, limiting the responsibility of the carrier, he is bound, nevertheless, to exercise ordinary diligence;2 and he is not exempted from liability for losses occasioned by a defect in the vehicle or machinery; because such a defect is a violation of his warranty.3
§ 958. Where a notice has been given, the burden of proof is in the first place on the carrier, to show that it has been actually brought home to the sender's knowledge,4 and then the burden of proof changes, and is thrown upon the sender, to prove that the carrier has been guilty of negligence. And in this respect the rule is the opposite of that applicable in ordinary cases of common carriers.5
§ 959. And wherever a valid contract has been made, exempting the carrier from loss arising from any particular cause, - as leakage, for instance, - if the consignor claim to recover where the loss arises from such cause (as he may do, if the carrier has been guilty of negligence in regard to it),6 the burden of proof is on the consignor to show that the carrier had been guilty of negligence, and not on him to show that he had not.7
1 Sleat v. Fagg, 5 Barn. & Ald. 342; Nicolson v. Willan, 5 East, 507; Dwight v. Brewster, 1 Pick. 50; Bowlin v. Nye, 10 Cush. 416; Orange County Bank v. Brown, 9 Wend. 85, 115; Batson v. Donovan, 4 Barn. & Ald, 21; Bignoldr. Waterhouse, 1 M. & Selw. 261. This rule as to negligence is not, however, settled in England. See ante, § 954.
2 Wyld v. Pickford, 8 M. & W. 461; Lyon v. Mells, 5 East, 428. But see, contra, cases cited § 954, notes.
3 Camden & Amboy Railroad v. Burke, 13 Wend. 611; Lyon v. Mells, 5 East, 428; Sharp v. Grey, 9 Bing. 457; Story on Bailra. § 571 a; Welsh v. Pittsburg Railway Co., 10 Ohio St. 65. But see Chippendale v. Lancashire & Yorkshire Railway Co., 15 Jur. 1106; 7 Eng. Law & Eq. 398.
4 See Crouch v. London & N. W. Railway, 2 C. & K. 789; 25 Eng. Law & Eq. 287.
5 Marsh v. Home, 5 Barn. & Cres. 322; Riley v. Home, 5 Bing. 217; Story on Bailm. § 410, 454, 457, 529, 574; 2 Greenleaf on Evid. § 216; Beckman v. Shouse, 5 Rawle, 189.
6 Phillips v. Clark, 2 C. B. (N. S.) 156; Leuw v. Dudgeon, Law Rep. 8 C. P. 17, note.
7 Czech v. Gen. Steam Nav. Co., Law Rep. 3 C. P. 14 (1867). And such has been the law of England ever since the decision in Harris v.
§ 960. Another right of a common carrier not before noticed is that of being informed of the nature and character of goods forwarded by him, if they be of a dangerous or explosive character, in order that he may either refuse to carry them, or be enabled to take extraordinary precautions in carrying; and, if he or his servants are injured by such goods for want of such information, the consignor is liable for the damage.1
Packwood, 3 Taunt. 264, in 1810; Railroad Co. v. Reeves, 10 Wall. 176. Lamb v. Camden & Amboy Railroad, 2 Daly, 454, seems to be contrary to the other authorities.
1 Farrant v. Barnes, 11 C. B. (n. s.) 553. See, also, Brass v. Maitland, 6 El. & B. 470.