1. The statement that the basis of a carrier's liability for
goods lost or damaged in transit is "presumed negligence" is in
effect only a statement of substantive law that the carrier is
liable unless the loss or damage was due to the act of God or the
public enemy, or the nature of the goods. P. 270 U. S.
2. The second proviso of the "Cummins Amendment" relieves
shippers from filing notice of claim, etc., where damage to goods
in transit. is due to the carrier's "carelessness or negligence"
only when the damage is due to the carrier's negligence in fact. P.
270 U. S.
3. The burden of proof is on the shipper to establish negligence
within the meaning of the proviso. P. 270 U. S.
4 Evidence that goods were shipped in good condition and
delivered in bad condition makes a prima facie
270 U. S.
5. But where, to rebut such prima facie
carrier introduced evidence of the condition of the cars in which
Page 270 U. S. 417
were shipped tending persuasively to exclude the possibility of
negligence, it was error to instruct the jury that, if the damage
was not due to the act of God or the public enemy or to the
inherent condition of the goods, they might return a verdict for
the shipper. P. 270 U. S.
99 W.Va. 670 reversed.
Certiorari to a judgment of the Supreme Court of Appeals of West
Virginia which affirmed a recovery of damages by the appellee in an
action against the railway company for damage to goods in
Page 270 U. S. 419
MR. JUSTICE STONE delivered the opinion of the Court.
The respondent, a corporation, brought suit in the circuit court
of Cabell County, West Virginia, to recover from petitioner, a
common carrier, for damage to an interstate shipment of goods. The
case was twice tried. See Thompson Manufacturing Co. v.
93 W.Va. 3. The second trial before a jury resulted
in a judgment for the respondent, which was affirmed by the Supreme
Court of Appeals of West Virginia, 99 W.Va. 670. This Court granted
certiorari. 267 U.S. 588; Jud.Code, § 237.
Page 270 U. S. 420
Petitioner supplied respondent, at its request, with two box
cars for the transportation of a quantity of sheet iron gas stoves
in carload lots from Huntington, West Virginia, to Kansas City,
Missouri. The stoves were shipped by respondent in good condition
on interstate bills of lading purporting to exempt the carrier from
liability unless claims for damage "be made in writing to the
carrier within four months after delivery of the property." Upon
arrival, many of the stoves were found to be damaged by rust and
unsalable. Respondent brought the present suit more than four
months after the delivery of the stoves, setting up in its amended
declaration that the damage was caused by the negligent conduct of
the petitioner. At the trial, the respondent made no attempt to
show compliance with the requirement of the bill of lading for
written notice of its claim to the carrier, and relied wholly on
proof of the delivery of the stoves to the carrier in good
condition and the delivery by the carrier at destination in a
damaged condition to establish its right to recover. Petitioner
proved that the cars supplied were in weather-tight condition,
that, after the goods were loaded on the cars, they were sealed at
the point of shipment, and that they arrived at destination in the
same weather-tight condition, with seals unbroken.
The case turns on the meaning and application, in the
circumstances, of the last proviso of the so-called Cummins
Amendment. Act of March 4, 1915, 38 Stat. 1196, 1197, c. 176,
amending the Interstate Commerce Act of February 4, 1887, c. 104,
24 Stat. 379, as amended by § 7 of the Act of June 29.1906, c.
3591, 34 Stat. 584, 593. The last two provisos of the Act, as
construed in Barrett v. Van Pelt, 268 U. S.
, read as follows:
"Provided further, that it shall be unlawful for any such common
carrier to provide by rule, contract, regulation, or otherwise a
shorter period for giving notice of claims than ninety days and for
the filing of claims for a
Page 270 U. S. 421
shorter period than four months, and for the institution of
suits than two years: Provided, however, that, if the loss, damage,
or injury complained of was due to delay or damage while being
loaded or unloaded or damage in transit by carelessness or
negligence, then no notice of claim nor filing of claim shall be
required as a condition precedent to recovery."
If respondent does not bring the case within the terms of the
final proviso, its failure to give written notice of claim will bar
it from recovery. See Georgia, Florida & Alabama Ry. Co. v.
Blish Co., 241 U. S. 190
Barrett v. Van Pelt, supra; Davis v. Roper Lumber Co.,
269 U. S. 158
It was argued by petitioner in the state court, as it argues
here, that, as respondent offered no direct evidence that the
damage to the goods in transit was caused by negligence of
petitioner, respondent did not show compliance with the
requirements of the Cummins Amendment for relieving the shipper
from the necessity of filing its claim in writing with the carrier.
On the other hand, it is argued by the respondent that every
carrier receiving goods for carriage in good condition, and
returning them in bad condition, is conclusively presumed to have
been negligent, and is liable for the damage resulting from its
negligence unless the injury was caused by the act of God, the
public enemy, or the act of the shipper or the nature of the goods
themselves; that, as the evidence and the verdict of the jury
established that the damage was not due to any of these causes, the
carrier's negligence was to be conclusively presumed, and no notice
of claim was necessary under the provisions of the Cummins
It is sometimes said that the basis of the carrier's liability
for loss of goods or for their damage in transit is "presumed
negligence." Hall & Long v. Railroad
13 Wall. 367, 80 U. S. 372
But the so-called presumption
Page 270 U. S. 422
is not a true presumption, since it cannot be rebutted, and the
statement itself is only another way of stating the rule of
substantive law that a carrier is liable for a failure to transport
safely goods intrusted to its care, unless the loss or damage was
due to one of the specified causes. See
Railroad Co. v.
10 Wall. 176, 77 U. S. 189
Railroad Co. v.
7 Wall. 357, 74 U. S. 376
Bank of Kentucky v. Adams Express Co., 93 U. S.
, 93 U. S.
We do not consider that the phrase "carelessness or negligence"
of the carrier, as used in the Cummins Amendment in exempting
shippers from giving written notice of a claim for damage, has any
reference to the conclusive "presumption" to which we have
referred. If such were the meaning of the statute, every case of
carrier's liability for damage in transit would be a case of
presumed negligence, and proof of written notice of claim for
damage required by the bill of lading would always be dispensed
with, and the plain purpose of the amendment would be defeated. We
think that, by the use of the words "carelessness or negligence,"
it was intended to relieve the shipper from the necessity of making
written proof of claim when, and only when, the damage was due to
the carrier's actual negligent conduct, and that by carelessness or
negligence is meant not a rule of liability without fault, but
negligence in fact. See Barrett v. Van Pelt, supra.
There is no language in the statute from which a purpose may be
inferred to vary or limit the common law rules governing proof of
negligence as a fact in issue, and the shipper may follow these
rules when he seeks to show that no notice of claim was
The respondent therefore had the burden of proving the carrier's
negligence as one of the facts essential to recovery. When he
introduced evidence to show delivery of the shipment to the carrier
in good condition and its delivery to the consignee in bad
condition, the petitioner became subject to the rule applicable to
all bailees, that
Page 270 U. S. 423
such evidence makes out a prima facie
negligence. Miles v. International Hotel Co.,
320; Miller v. Miloslowsky,
153 Iowa 135; Dinsmore v.
89 Me. 373; Railroad Co. v. Hughes,
242, 246; Hildebrand v. Carroll,
106 Wis. 324. The effect
of the respondent's evidence was, we think, to make a prima
case for the jury. See Sweeney v. Erving,
228 U. S. 233
Hanes v. Shapiro,
168 N.C. 34, 35; Sims v. Roy,
42 App.D.C. 496, 499. But even if this "prima facie
be regarded as sufficient, in the absence of rebutting evidence, to
entitle the plaintiff to a verdict (Buswell v. Fuller,
Me. 600, 602, 603; Cogdell v. Railroad,
132 N.C. 852), the
trial court erred here in deciding the issue of negligence in favor
of the plaintiff as a matter of law. For the petitioner introduced
evidence of the condition of the cars from the time of shipment to
the time of arrival which persuasively tended to exclude the
possibility of negligence.
The trial court properly submitted to the jury the question
whether the damage was due to an act of God or the public enemy or
to the inherent condition of the stoves, since upon the answer to
it depended the liability of the carrier provided the shipper was
entitled, under the Cummins Amendment, to maintain suit without
giving the stipulated notice. But the court erroneously instructed
the jury that, if they found that the damage was not due to these
causes, they might return a verdict for the respondent, thus in
effect resolving the issue of negligence in favor of the
The judgment must therefore be reversed, and the cause remanded
for further proceedings not inconsistent with this opinion.