Negligence has always relation to the circumstances in which one
is placed, and what an ordinarily prudent man would do or omit in
such circumstances.
The failure to keep a watchman and fire apparatus at a switch
track plantation
Page 194 U. S. 433
station, maintained for ten years for the convenience of
shippers, who thereby were saved the expense of sending their
cotton two and a half miles to a regular station and who never
demanded the additional protection, no accident or fire occurring
during such period, is not negligence on the part of the carrier,
and, in the absence of any evidence whatever as to the origin of
the fire, justifies the direction of a verdict for defendant.
Cau v. Texas & Pacific Railway Co., ante, p.
194 U. S. 427,
followed as to conditions under which a common carrier may limit
its liability against damages to goods by fire.
The facts are stated in the opinion of the court.
Page 194 U. S. 436
MR. JUSTICE McKENNA delivered the opinion of the Court.
The case was removed from the Civil District Court in and for
the Parish of Orleans to the United States Circuit Court for the
Eastern District of Louisiana by defendant on the ground that it
was a corporation organized by an act of Congress of the United
States.
The petition alleges that plaintiff delivered to defendant at a
point on the line of its railway called Meekers' Switch, to be
transported to New Orleans, fifty-two bales of cotton at a rate of
freight then and there agreed upon, and a bill of lading issued to
plaintiff. The cotton was loaded upon the cars of defendant, and,
while waiting transportation, was destroyed by fire.
The petition charges negligence on the part of defendant in that
it failed to take measures of precaution for the safety and
protection of the cotton, but left it in the cars on a side track,
"in an open country, unguarded and unwatched." The bill of lading
contained a provision exempting defendant from liability for damage
to, or destruction of, the cotton by fire, but the petition alleges
that the provision was null and void, as far as plaintiff is
concerned, for the following reasons, among others: he received no
consideration therefor; the rate which he agreed to pay was the
only rate defendant would give or was offered; on account of the
negligence of the defendant.
The value of the cotton was $2,440.32.
The evidence in the case is that Meekers was a mere switch track
running to the Meekers plantation. No agent was maintained at the
station. Shippers wanting cars applied for them at the next
station. The practice was for shippers to load the cars furnished
and to get bills of lading from the agent who furnished the cars.
The next train passing after the cars were
Page 194 U. S. 437
loaded took them; that no guard or watchman was placed over
freight was well known.
The loading of the cotton in the present case was completed at 2
P.M. The bill of lading was obtained at 5 P.M. The fire was
discovered at 10 P.M. The train which was to take the cars was not
due until 9 A.M. next morning. There was no evidence of the cause
of the fire.
Defendant moved the court to instruct the jury to return a
verdict for it. Plaintiff requested the court to submit to the jury
the question whether or not the destruction of the cotton was due
to, or caused by, the negligence of the defendant. The request was
denied, and the motion of the defendant was granted, and a verdict
was returned for defendant. From the judgment entered on the
verdict, error was prosecuted to the Circuit Court of Appeals for
the Fifth Circuit, and the judgment was affirmed. 113 F. 92.
This case was argued and submitted with
Cau v. Texas &
Pacific Railway Co., and all of its questions are ruled by
that case except one, and that is the effect of leaving the cotton
unguarded on the responsibility of the defendant.
In answering the question, two elements are to be considered --
the negligence of the defendant and its connection with the
destruction of the cotton. If the evidence established neither, the
circuit court rightfully directed a verdict for defendant.
Negligence has always relation to the circumstances in which one
is placed, and what an ordinarily prudent man would do or omit in
such circumstances. Applying that test in the case at bar, we do
not think negligence on the part of defendant was established.
Meekers was not a regular station -- indeed, was not a station
at all, but a mere switch track. The defendant was not obliged to
receive freight there. It was, as said by the court of appeals, "a
country or plantation switch," established and maintained for the
accommodation of the planters of the neighborhood. There was no
agent or employee maintained there for the purpose of receiving or
guarding freight, nor was there fire
Page 194 U. S. 438
apparatus kept. Cars were only sent there when ordered, loaded
by the shipper, and taken by the first passing freight train to the
point of destination. This was the practice for years, and there is
not a word of testimony that it was not adequate to the protection
of the planters, as it was to their accommodation, or that it was,
in their judgment, not a complete fulfillment of the duty of
defendant. No circumstance is shown which demanded a change in the
practice. There was no demand made by the plaintiff for a change.
Whatever risk there was seems to have been accepted as a
consideration for the convenience afforded. It is easy to
understand that, if watchmen had been demanded of the defendant, it
would have insisted upon the delivery of freight at its regular
station at Le Compte, two and one-half miles distant. But the risk
seems not to have been great. No loss from any cause is shown to
have occurred during the existence of the practice -- nothing shown
from which danger could be apprehended. One of the plaintiff's
witnesses testified that tramps passed up and down the road daily,
but what can be inferred from that? It is inappreciable. Was danger
to be apprehended from their carelessness or malice? During the ten
or eleven years of the existence of the station, not an instance of
either is shown.
It is, however, urged that a place of delivery other than a
regular station can be agreed on or established by custom or
practice, and at the instant of delivery, the full responsibility
of a carrier attaches. To bring the case at bar within those
principles,
Fisher v. The Norval, 8 N.S. 120;
Barrett
v. Salter, 10 Rob. 434, and
Roth v. Harkson, 18
La.Ann. 705, are cited. The principles may be assented to; the
cases cited are distinguishable from that at bar.
In
Fisher v. The Norval, 35 bales of cotton were sent
to be shipped on the brig
Norval, and were received by the
captain. The cotton was left upon the levee unguarded, and during
the night following delivery, it was destroyed by fire. The origin
of the fire was not shown, but it was shown
Page 194 U. S. 439
that it was not customary in the city (New Orleans) to put a
guard over cotton so placed. The Code of the state made carriers
liable for loss or damage to property entrusted to their care
unless they proved that such loss or damage had been occasioned by
accidental and uncontrollable events. The defendants in the case
were adjudged liable. The supreme court held, approving the
decision of the trial court,
"there was negligence in the defendants permitting the cotton to
be exposed all night on the levee to theft, fire, and other
accidents without some person to take care of it."
It was not the care, the court further observed, that a prudent
person would take of his own property, and the custom proved was
not a good excuse. The facts in that case are markedly different
from those in the pending case. Cotton exposed upon the levees of
New Orleans is in a different situation from cotton enclosed in
locked boxcars on a side track in the solitude of the country, and
demands a different degree of care.
In
Barrett v. Salter, 40 hogsheads of tobacco were
delivered for shipment on the ship
Huron. It was receipted
for by the mate. After it was received, a heavy rain came which
lasted about two hours, to which it was suffered to remain exposed.
It was testified that the captain was told that, if the tobacco
should be put on board without being opened and trimmed, it would
be found damaged on its arrival at destination. It was so found.
The defendants were held liable.
In
Roth v. Harkson, the question was whether cotton put
in a place designated by a mate of a ship, and covered by a
tarpaulin, by the direction of the officers of the ship, was
delivered to the ship, notwithstanding the officers afterwards
refused to receipt for it on the ground of the lateness of the
hour. It was held to be a delivery.
The question in the case at bar, however, is not whether there
was delivery to defendant, nor when its responsibility attached,
but assuming delivery at Meekers, and that defendant's
responsibility attached at the time the bills of lading were
issued, was defendant guilty of negligence? That question
Page 194 U. S. 440
we have answered in the negative; nor could the answer be
otherwise, even if it be conceded, as contended by plaintiff, that,
under the law of Louisiana, the burden of proof was upon the
defendant to show the absence of negligence. The allegation of the
petition was:
"That the fire by which the destruction of said cotton was
caused was due to the negligence of the said company itself, and of
its agents, employees and servants; that the said cotton was by it
left in two cars of the said company standing upon its track in the
open country, unguarded and unwatched by the said company in any
particular whatsoever; that it was the duty of the said company to
take some measures of precaution to protect said cars and the
cotton contained therein, from depredation, loss, or injury by
third persons, wrongdoers or those bent upon mischief; that it
totally failed and neglected to take any measures of precaution for
the safety and protection of the said cotton, but left it in said
cars, said track, unguarded and unwatched, in the nighttime, during
which it was destroyed by fire; that petitioner believes that the
said cotton was set on fire by some malicious person; that
petitioner has no actual knowledge as to the origin or cause of
said fire."
The evidence we have commented on, and, we may only add it
established all that was charged as negligence, and there was
nothing for the defendant to explain. The defendant could, as it
did, submit the question of its liability upon the evidence
adduced.
Judgment affirmed.