[Grey's Ex'r v. Mobile Trade Company.]

on many of the authorities, and came to the conclusion, that the true rule lies between the two extremes. After referring to the authorities which declare, without limitation, that the onus is on the carrier to bring himself within the exception, he, in effect, declares that it is incumbent on him only to make a prima facie case of exculpation; and that, beyond this, it is, like any other disputed question of fact, to be determined by the jury, upon a proper consideration of the whole testimony. His language is, "The exception includes only such breakage as care and diligence could not prevent; and the injury is not within the exception, until it is shown that it occurred notwithstanding the exercise of such care and diligence. It is not strictly accurate to say, that the onus is on the carrier to show, not only that the cause of loss was within the exception, but also that he exercised due care. The correct view is, that the loss is not brought within the exception, unless it appears to have occurred without negligence on the part of the carrier; and as it is for the carrier to bring himself within the exception, he must make at least a prima facie showing that the injury was not caused by his neglect."

This case has been quoted with approbation in all our later decisions. See M. & O. Railroad Co. v. Hopkins, 41 Ala. 486; Same v. Jarboe, Ib. 644; S. & N. Railroad Co. v. Henlein, 52 Ala. 696. In the last case cited, BRICKELL, C. J., says, "When a loss or injury happens, the onus probandi rests on the carrier to exempt himself from liability; for the law imposes on him the obligation of safety. The owner or shipper is bound to prove no more than that the goods were delivered to the carrier, and the failure to deliver them safely. These facts are prima facie evidence of negligence or misconduct." Steele v. Townsend, supra, is cited in support of this; and there was no intention to mar or qualify the principle above declared.

The law of this State, then, stands as follows: The shipper makes a prima facie case against the carrier, when he shows the goods were not delivered. This casts the onus on the carrier, to show that the loss occurred from a danger of the river, or from fire; and he must also prove a prima facie case of diligence on his part. This, of course, implies a river-worthy vessel, properly furnished and appointed, competent and sufficient officers and crew, and care and vigilance to prevent danger, and to avert it when impending. Any deficiency in the skill or watchfulness of the officers or crew, in the matter of their special function; in the apparatus to extinguish fire, or in its whereabouts or readiness for prompt present use, or in prompt and vigorous effort to extinguish

[Grey's Ex'r v. Mobile Trade Company.]

a fire when it originates, would fall short of proving a prima facie case of diligence. Beyond these two shifting stages, our decisions have declared no rule in the matter of the burden of proof. The opinion in Steele v. Townsend was delivered by an able and prudent judge, and we adhere to it, believing the principle to be sound.

7. What measure of diligence is required of a common carrier, to bring himself within the exception found in this bill of lading? Here, again, the authorities, not only are not in harmony, but there is a want of precision in the language in which the principle is often expressed. In Steele v. Townsend, supra, the expressions bearing on this question are, "that discretion and care which the law requires of common carriers ;" "that due diligence and proper skill were used to avoid the accident;" * liability for losses by neglect, which is the liability of a bailee."

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In New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. U. S. 344, 384, Justice NELSON phrases it, "want of due care, or gross negligence." In Redfield on Carriers, $371, it is said, "After the presumption of negligence has been established against a carrier of passengers, it can only be rebutted by showing that the accident was the result of circumstances against which human prudence could not have guarded. By this we are to understand such prudence as one might have taken before the occurrence, and not that which afterwards it may be apparent would have been proper." This, it will be observed, relates to passengers, and not to freight.

In 2 Greenl. Ev. § 219, speaking of goods received under a special acceptance, and the cause of loss claimed to be within the exception, the author says, the carrier must show, "not only that the cause of the loss was within the terms of the exception, but, also, that there was on his part no negligence, or want of due care."

In Wylde v. Pickford, 8 Mees. & Wels. 443, 461, Baron PARKE, speaking of the liability we are considering, said, the carrier is "bound to use ordinary care in the custody of the goods, and their conveyance to, and delivery at their place of destination, and in providing proper vehicles for their carriage"-See, also, Sager v. Portsmouth S. & P. & E. R. R. Co., 31 Maine, 228. We might continue these extracts almost indefinitely, and, in almost every case, in varying phraseology.

The measure of diligence required of bailees, or other persons to whom the goods of others are confided, is not always the same. The nature of the goods, whether easily destructible or not, and the perils attending the proposed mode of

[Grey's Ex'r v. Mobile Trade Company.]

transportation, should be taken into the account. What would be diligence of a high order in the handling of some articles of commerce, would be gross negligence in the handling of others. Steam, as a motor, on the great highways of commerce, has well-nigh supplanted all other agencies. The perils attending its use, when not directed with vigilance and educated skill, are scarcely exceeded by the great benefits. that have resulted from its employment. An ignorant or reckless tampering with its immense capabilities is a crime against life and property, which can scarcely be too loudly condemned, or too severely punished. It savors of that universal malice, spoken of in the books. And when, as in this case, there is not only immense hazard in the unskillful or negligent handling of the instrument of transportation, but the peril is greatly increased by the highly combustible quality of the commodity which constituted the bulk of the cargo, a higher diligence and stricter vigilance are required of those in charge. "The bailee ought to proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part."-Story on Bailments, § 15; Ib. § 62. See, also, Steamboat New World v. King, 16 How. 469, which was, like this, the case of a river steamboat; Shear. & Redf. Neg. §§ 7, 11, 19, 23.

In Davidson v. Graham, 2 Ohio State, 131, it is said: "The common carrier has the right to restrict his common-law liability by special contract; and this extends to all losses not arising from his own neglect, or omission of duty. He cannot, however, protect himself by contract from losses occasioned by his own fault. He exercises a public employment, and diligence and good faith in the discharge of his duties are essential to the public interests. He is held to extraordinary diligence-that is, that degree of diligence which very careful and prudent men take of their own affairs; and he is responsible for all losses arising from a neglect of that high degree of diligence enjoined on him by his public employment.'

In the case of Baker v. Brinson, 9 Rich. Law, 201, speaking of an exception in the bill of lading, the court said, "It is only necessary to bear in mind that the character of the carrier is not changed: his liability only, to the extent of the exceptions, is diminished. In all things else, the very same principles apply. Care and diligence are still elements of the contract, and 'strict proof' is properly required before any exemption may be claimed." So, in Swindler v. Hilliard, 2 Rich. 286, 306, the court said, "The carrier's liability is diminished, to the extent of the exception, but his character is not changed. He is still a common carrier, so long as any

[Grey's Ex'r v. Mobile Trade Company.]

of the incidents and liabilities of that employment remain. He is a public carrier for hire, and the exception in the bill of lading does nothing more than excuse him where the loss has happened by fire without fault or negligence on his part.' In the case of Selma & Meridian Railroad Co. v. Butts, 43 Ala. 385, this court said, "The business of the whole country, and the vast necessities of commerce, require that these means of transportation shall not be abused to the injury of the citizen. They are, therefore, held to the strictest accountability for all losses occasioned by their neglect to discharge any of the duties attached by law to the office and trust of common carriers."-See, also, Williams v. Grant, 1 Conn. 487; Neal v. Saunderson, 2 Sm. & Mar. 572; Leech v. Baldwin, 5 Watts, 446; Graham v. Davis, 4 Ohio State, 362; Caldwell v. N. J. Steam Nav. Co., 47 N. Y. 282; 2 Greenl. Ev. § 219; Sager v. Portsmouth S. & P. & E. Railroad Co., 31 Me. 228; Chamberlain v. Ward, 21 How. 548; Clark v. Barnwell, 12 How. 272; Rich v. Lambert, Ib. 347.

In view of the very great necessity for skill and watchfulness in the management of steamboats navigating our waters, and carrying passengers and freight as a business, we approve and adopt the rule of diligence required in our sister States of Ohio and South Carolina, and hold that such common carrier, who would excuse himself under the exception found in this bill of lading, must be shown to have employed "that degree of diligence which very careful and prudent men take of their own affairs." In this we but affirm that only very careful and prudent men should be placed in charge of such vehicles of transportation, and that they shall employ their care and prudence actively, as such men watch over their own important interests and enterprises, of similar magnitude and delicacy. A more precise rule of diligence, in such cases, we are unable to lay down, as matter of law. 8. The act of congress, entitled "An act further to provide for the safety of the lives of passengers on board of vessels propelled in whole or in part by steam, to regulate the salaries of steamboat inspectors, and for other purposes," approved July 25, 1866 (14 Stat. at Large, 227), enacts, "That cotton, hemp, hay, straw, or other easily ignitible commodity, shall not be carried on the decks or guards of any steamer carrying passengers, except on ferryboats crossing rivers, and then only on the sterns of such boats, unless the same shall be protected by a complete and suitable covering of canvass, or other proper material, to prevent ignition from sparks, under a penalty of one hundred dollars for each offense.' The steamer, in the present case, was carrying passengers, had on board a large quantity of cotton, stored on its guards

[Grey's Ex'r v. Mobile Trade Company.]

and lower decks, which was not "protected by a covering of canvass or other material," within the letter or spirit of the act of congress. The cotton was ignited, but not from sparks, and the boat and cotton were burned up. If there had been, over the cotton, "a complete and suitable covering of canvass, or other proper material," such as is used on steamboats (called tarpaulin), the cotton would not have ignited, and both it and the boat would have been saved. It is contended for appellant, that this failure to conform to the requirements of the act of congress was, per se, negligence, which renders the appellee liable for the cotton. Against this view it is urged, that the purpose of the enactment was, what the title shows, "further to provide for the safety of the lives of passengers;" and that it neither increases nor diminishes the liability of the carrier in the matter of freight.

In the case of Brown v. The Buffalo & State Line Railroad Co., 22 N. Y. 191, there was an ordinance of the city, which forbade, under a penalty, "the moving of locomotives or cars on any portion of the defendant's railway, within the city, at a rate of speed exceeding six miles an hour." Plaintiff's intestate, crossing the track of the railroad on a public street, was struck and killed by defendant's train, which was "moving at a rate of speed exceeding six miles an hour." A bare majority of the court decided, "that the simple act of the defendant, of running the train at a greater rate of speed than six miles an hour, unconnected with any actual negligence, involved the defendant in no other consequences than the payment of the penalty." DENIO, SELDEN, and CLARKE, JJ., dissented. In the case of Fillo v. Jones, 43* N. Y. 328, this case was cited approvingly, and an opinion delivered, not distinguishable from the last one in principle. In the case of Jetter v. N. Y. & Harlem R. R. Co., 41* N. Y. 154, speaking of the case from 22 N. Y. supra, the Court of Appeals said: "That case stands upon grounds altogether too doubtful to justify its application to cases not strictly within it. The opinion confounds all distinction between civil remedies and criminal punishments, and the authorities cited by it go no farther than to hold that, when a specific penalty is prescribed by a law forbidding an act not per se criminal, the act is not otherwise punishable as a public offense. It failed to recognize the axiomatic truth, that every person, while violating an express statute, is a wrongdoer, and, as such, is, ex necessitate, negligent in the eye of the law; and that every innocent party, whose person is injured by the act which constitutes the violation of the statute, is entitled to a civil remedy for such injury, notwithstanding any redress the public may have."