Childs v. Little Miami Railroad

We have no disposition to disturb the conclusions of fact arrived at by the judge at Special Term.

In looking into the bill of lading we find several special contracts as to exemption from liability from loss, all of which it is admitted are within the cases found in our Supreme Court Reports. Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362.

*482It is not, we think, seriously contended that there remains anything in the case but the question of negligence. The plaintiffs allege negligence in the petition. They might have been content to aver the receipt and non-delivery of the goods according to the contract, thus leaving to the defendant the burden of pleading and proving due care and no loss within the contract as an excuse for the non-performance of its requirements. If the pleadings presented themselves thus, there could be no question about the burden of proof. As they stand, however, it is claimed that, from the frame of the pleadings of the plaintiffs, they have assumed the burden of proof, and that they must make out their case by the preponderance of testimony.

The plaintiffs could not have recovered except on the contract, which contains these stipulations of exemption from liability. Suppose the plaintiffs had declared on the non-delivery of the goods, and the defendants had answered that the loss was within one of the exceptions of the bill of lading. Then the plaintiffs, unless they contested the averment of the answer, would have replied substantially in the allegations of the petition. And this, it seems to us, would have thrown the burden of proof upon them. In Railroad Co. v. Reeves, 10 Wall. 176, where the common carrier showed the loss was from the vis major, it was held that he was excused without proving affirmatively that he was guilty of no negligence, and the proof of negligence, if asserted to exist, rests on the other party. “ What is to make him liable ? ” asks the court, in that case, after proof of loss by vis major. “No question of his negligence arises, unless it is made by the other party. 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.” If the plaintiffs had gone to trial on the averments of the supposed answer, then the burden of proof would clearly have been on the defendant. That was so held in Davidson v. Graham. *483.Now, we think the burden of proof was on the plaintiff, ' and, in looking into the testimony, we are not prepared to ’say the judge below erred in his finding. It was not enough to presume that the cotton took fire from some negligence, such as a spark from a passing locomotive falling on it through an opening in the ear, which is the theory of the plaintiffs, without some satisfactory proof on the subject. Non constat but that it may have been by spontaneous combustion, which no human care could guard against, and which , the tightest cars could not prevent. There was no proof on the subject whatever. It was claimed that there was a “ deviation,” so to speak, in delaying the cars on the side-tracks; but this is too remote. Causa próxima non remota spectatur is a maxim which applies to this as to other contracts. Morrison v. Davis, 20 Pa. St. 171; Dewey v. New York Central Railroad, 13 Gray, 481.

The mere presumption of negligence where a loss has occurred, which is rebutted by testimony, such as we find in this case, is not strong enough to authorize a recovery. Nor do we think there is sufficient evidence to warrant the statement that the defendant ought to have refused taking the cotton on the ground of insufficiency of transportation ; nor that the defendant is liable because the loss occurred while the cotton was not in transit, according to an exception of such a loss in the bill of lading.

The judgment will be affirmed.