of negligence if it failed to adopt the most approved modes of construction and machinery in known use in the business, and the best precautions in known practical use for securing safety; and that if there was known, and in use, any apparatus which, when applied to an engine, would enable it to consume its own sparks and thus prevent them from igniting goods in the company's charge, it was negligent if it did not avail itself of such apparatus; but that it was not bound to use every possible prevention which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction. And it was said that there must exist, not only the scientific power to make locomotives which would consume their own sparks, but such locomotives must have been made and put into practical use before a railway company could be charged with negligence in not putting them on its road.28

The rule in such cases is that when the plaintiff has shown that the fire which has caused the damage originated from sparks escaping from the locomotive of the defendant, a prima facie case of negligence is established which may be rebutted by evidence showing that the locomotive was supplied with a spark arrester or other appliance for preventing the escape of sparks such as was approved and used by railroads generally, and that the locomotive was carefully and skillfully handled by the carrier's agents or employes.29

Sec. 504. (§ 295.) Liability of carrier for using exposed cars. In Levering v. Union Transportation Company,30 where cotton, being carried by railroad under a bill of lading which provided that it was carried "at the owner's risk of fire," was destroyed by fire in the course of the transit in one of the company's cars, it was held that if the loss were attributable to its being in a car which was not safe and suitable to protect it against such an accident, the company was liable, notwith

28. Ford v. Railway Co., 2 Fos. & Fin. 730; Hegeman v. Railroad, 3 Ker. 9; Field v. Railroad, 32 N. Y. 339.

29. Otis Co. v. Railway Co., 112 Mo. 622, 20 S. W. Rep. 676; Fire

Association v. Loeb, 1 Tex. Ct. Rep. 537, 59 S. W. Rep. 617, citing Railway Co. v. Johnson, 92 Tex. 591, 50 S. W. Rep. 563.

30. 42 Mo. 88.

standing the exception in its bill of lading. And in The New Jersey S. Co. v. Merchants' Bank,31 one of the grounds upon which the carrier was denied the benefit of the exception against risks in his contract was, that he had not provided himself with a safe vessel, nor with the appliances for the extinguishment of fire which the law of congress required. So where merchandise was being carried in the same train with an exceedingly inflammable oil, which was set on fire by sparks from the locomotive, and owing to some defect in the coupling of the cars they could not be separated in time to prevent the burning of the car in which the merchandise was loaded, it was held that the defect in the coupling was negligence in the company, and that it was liable, notwithstanding its receipt. provided that the shipper should take all risks of fire.32

Sec. 505. (§ 295a.) Duty in respect to providing refrigerator or ventilated cars. If the goods are of such a nature as to require for their protection some other kind of car than that required for ordinary goods, and cars adapted to the necessity are known and in customary use by carriers, it is the duty of the carrier where he accepts the goods to provide such cars for their carriage.33 This rule, of course, would not

31. 6 How. 344. See the opinion of Woodbury, J.

32. Empire T. Co. v. Wamsutta Oil Co., 63 Penn. St. 14.

a

33. Beard v. Railway Co., 79 Iowa, 518. In this case a carrier received for transportation quantity of butter to be shipped to New Orleans, and sent it forward in a common car without ice or other protection, whereby it was injured. In its opinion the court said: "In the case before us the marks on the package and the waybill disclosed that the subject of shipment was butter. The employees of defendant were endowed with intelligence which taught them that the season was summer, when warm weather prevailed; that but

ter in common cars would be greatly injured by the ordinary heat of the climate; and that the butter, as it approached its destination, would be subject, by reason of the change of latitude, to greatly increased heat from the weather. All these things are familiarly known to all men. Surely, the law will presume that defendant's employees had full knowledge thereof. The law required the defend. ant, having received the perishable cargo involved in this suit, to exercise the care and diligence necessary to protect it; and, if improved cars for the transportation of articles of commerce liable to injury from heat were in use, it was defendant's duty to use

extend to compelling a carrier by wagon to equip his wagon. with absolute safeguards against undue heat or cold, since "it would be unreasonable to measure the duty of an ordinary freighter in providing vehicles for the transportation of perishable property with that of a company contracting for transportation across the continent by rail.'34 But undoubtedly under modern methods in the case of carriers by rail, the rule would extend to proper refrigeration according to the established custom.35 And the same would be true of modern ocean going vessels.36

It is competent, of course, for the carrier and shipper to enter into a special contract designating the manner in which perishable property is to be carried, and if the carrier should

such cars in carrying the butter.

Having accepted the butter for transportation, defendant cannot escape liability for not safely transporting it on the ground that it did not have cars sufficient for the purpose."

"These views are supported," said the court, "by the following among other cases: Hewett v. Railway Co., 63 Iowa, 611; Sager v. Railroad Co., 31 Me. 228; Hawkins v. Railway Co., 17 Mich. 62, 18 Mich. 427; Railroad Co. v. Pratt, 22 Wall. 123; Wing v. Railway Co., 1 Hilt. 241; Transportation Co. v. Cornforth, 3 Col. 280. As to the duty of defendant to use cars so constructed and used as to avoid injury from heat, see Boscowitz v. Express Co., 93 Ill. 525; Steinweg v. Railway Co., 43 N. Y. 123."

So where a carrier accepted for transportation in winter time a quantity of delicate fruit, likely to be injured by freezing unless protected, and sent it on in a common box-car, whereby it was injured, when a refrigerator car

would have protected it, the carrier was held liable for not using the refrigerator car.

Merchants' Despatch Co. บ. Cornforth, 3 Col. 280.

34. Carr v. Schafer, 15 Colo. 48, 24 Pac. Rep. 873.

35. Johnson v. Railway Co., 133 Mich. 596, 95 N. W. Rep. 724, 10 Det. L. N. 324, 103 Am. St. Rep. 464; Railroad Co. v. Cromwell, 98 Va. 227, 35 S. E. Rep. 444, 49 L. R. A. 462, 81 Am. St. Rep. 722; Popham v. Barnard, 77 Mo. App. 619; Udell v. Railroad Co., 13 Mo. App. 254. But see Wetzell v. Railroad Co., 12 Mo. App. 599, and Tucker v. Railroad Co., 33 N. Y. Supp. 93, 12 Misc. 117; s. c. 32 N. Y. Supp. 1, 11 Misc. 366, reversing 30 N. Y. Supp. 811, 10 Misc. 35. See also, as to ventilated cars, Davenport v. Railroad Co., 173 Pa. St. 398, 34 Atl. 59 and Giles v. Fargo, 60 N. Y. Super. Ct. 117, 17 N. Y. Supp. 476.

36. The Maori King v. Hughes, (1895) 2 Q. B. 550, 65 L. J. Q. B. 168, affirming 64 L. J. Q. B. 744.

undertake to carry such property in cars specially adapted to preserve it, he would become responsible for any defects in the cars resulting in injury to the property.37 And although the shipper may discover before the departure of a car that a special stipulation in the contract, such as that the car shall be iced and re-iced as often as necessary, has been insufficiently carried out by the carrier, he will not on that account assume any risk of loss where he has no opportunity of relieving the situation and he honestly believes the property will reach its destination in good order.38

If the shipper undertakes to supply a refrigerator car with ice, the carrier has the right to assume, unless the facts are such as to put him on notice to the contrary, that the shipper has furnished a sufficient quantity of ice to keep the car cool until a delivery to the consignee can, in the ordinary course of business, be made. But the nature of the service in such a case also gives rise to an implication that the carrier will exercise a proper degree of care, where actual delivery has been delayed beyond the usual time, in protecting the property from injury by the heat.39

Sec. 506. (§ 295b.) When carrier may use open or closed cars. So it is the duty of the carrier to have and use such vehicles as are reasonably adapted to protect the goods from inclemencies of the weather and from loss by theft, or otherwise. Certain classes of goods, for example, may properly be transported upon open cars; while to so transport goods liable to be injured by rain or snow or to be abstracted by thieves along the route might be gross negligence.

Under his common-law liability as an insurer, the duty of properly protecting the goods against such losses as these exists for his own protection, but even under contracts limiting his liability, the reasonable care which the law still de

37. Railroad Co. v. Davis, 54 Ill. App. 130; affirmed in 159 Ill. 53, 42 N. E. Rep. 382, 50 Am. St. Rep. 143; Perishable Freight Trans portation Co. v. O'Neill, 41 Ill. App. 423.

38. Johnson v. Railway Co., 133 Mich. 596, 95 N. W. Rep. 724. 39. Railway Co. v. Reyman, 73 N. E. Rep. 587.

Ind.

mands will require proper attention to the subject of such protection, 40

Sec. 507. Bullion room on vessel for carriage of precious metals must be reasonably safe. If gold or other precious metals are to be carried in a vessel, and it is in the contemplation of both parties to the contract that the gold is to be carried in a bullion room, there is an implied warranty that the bullion room in which the gold is stored is so constructed as to be reasonably fit to resist thieves.41

Sec. 508. How where shipper selects the vehicle himself.— As we have seen, the duty of furnishing suitable vehicles rests upon the carrier and not upon the shipper, and the failure to discharge this duty is negligence from the consequences of which the carrier is not permitted to free himself by a stipulation in the bill of lading which devolves upon the shipper the duty of selecting vehicles which are suitable. Such a stipulation is void as an attempt by the carrier to limit his liability against his own negligence in providing defective vehicles. 42

40. Sending cotton on open cars when fires are raging along the track is negligence. Insurance Co. v. Railway Co., 3 McCrary, 233. It is not negligence to carry on an open car goods packed in a case too long for a box car if proper precautions are taken to protect them from the weather. Burwell . Railroad Co., 94 N. C. 451.

To carry oil in open cars whereby the barrels in which the oil was were exposed to the sun and weather, and were destroyed in violation of a contract to carry in covered cars, was held to be such negligence as to estop the carrier from setting up his exemption in the bill of lading that "oil was carried at the owner's risk." Railway Co. v. Fitzgerald (Can.) 5 S. C. R. 204.

41. Queensland & Nat. Bank v.

Steam Nav. Co., (1898) 1 Q. B. 567, 67 Law J. Q. B. 402, 78 Law T. (N. S.) 67, 8 Asp. 338.

42. Railway Co. v. Pratt, 89 U. S. 123, 22 L. Ed. 827; Railway Co. v. Marshall, Ark. 86 S. W. Rep. 802; Railway Co. v. Harwell, 91 Ala. 340, 8 So. Rep. 649; Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. Rep. 382, 50 Am. St. Rep. 143; Railroad Co. v. Holland, 162 Ind. 406, 69 N. E. Rep. 138, 63 L. R. A. 948; Railroad Co. v. Dies, 91 Tenn. 177, 18 S. W. Rep. 266, 30 Am St. Rep. 871; Railway Co. v. Fairbanks, 90 Fed. 467, 33 C. C. A. 611.

"The individual, in a sense, is compelled to accept of whatever is offered him by the carrier and cannot refuse it without, perhaps, destroying his interests. It is the carrier's duty to furnish suitable cars for the transaction of his