
    N. W. Graham & Co. v. W. H. Davis & Co.
    A common carrier, by special contract with the owner of goods intrusted to* him, may so far restrict his common-law liability as to exonerate himself’ from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed.
    But he can not, by such stipulation, relieve himself from responsibility'for losses-caused by his own negligence or want of care and skill.
    In an action against a carrier, upon a bill of lading containing an exception of the dangers of the river navigation and inevitable accidents, after the non-delivery of the goods is shown, the burden of proof is upon the carrier to show not only a loss within the terms of the exception, but also that proper care and skill were exercised to prevent it.
    
      .A loss by negligence, however slight, is not within the exception, and the carrier is liable.
    .A party upon whom the affirmative of an issue devolves is bound to give all his evidence in support of the issue in the first instance; and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary.
    .Any relaxation of this rule is but an appeal to the sound discretion of the court in which the issue is tried, and can not be reviewed on error.
    Error to the district court of Muskingum county.
    
      W. H. Davis & Co., the plaintiffs below, brought an action of as.sumpsit against N. W. Graham & Co., the defendants below, which went by ajjpeal to the district court of Muskingum, where they recovered a judgment for $2,620.18 damages, and $194.94 coste; to reverse which judgment this petition is filed.
    *The third count of the declaration, and the bill of exceptions, are all the parts of the record necessary to be read for an un•derstanding of the case.
    The said third count reads as follows:
    And for that whereas, also, the said defendants afterward, to wit, ■on the 10th day of November, a. d., 1852, at Pittsburg, to wit, at the county of Muskingum aforesaid, were the owners and proprietors of a certain other steamboat, to wit, a certain other steamboat called the “Dan Conver’s,” used and employed in carrying and -conveying passengers, and goods and merchandise, on the waters of the Ohio and Muskingum rivers, to wit, from Pittsburg, in the State of Pennsylvania, to Zanesville, in the county of Muskingum .aforesaid, and to divers other places, on and adjacent to said rivers. And the said defendants, being such owners and proprietors of said ••steamboat, on the day and year aforesaid, at the city of Pittsburg, to wit, at the said county of Muskingum, in consideration that the said plaintiffs would deliver to them, the said defendants, on board .•said steamboat, certain goods and chattels of great value, to wit, of the value of $4,000, to be conveyed by the said defendants, in and by said steamboat, from the said city of Pittsburg to the city of .Zanesville, in the said county of Muskingum, in the like good order in which they were in when received on board thereof, the dangers of the river navigation, fire, and unavoidable accidents excepted ; for a certain reward therefor, to be paid by the said plaintiffs to the said defendants, they, the said defendants, promised and unrdertook, to, and with the said plaintiffs, to the said goods and chattels from said city of Pittsburg to the said city of Zanesville, and there to deliver them without delay unto the said plaintiffs, or to their assigns, in the like good order in which they were received, the dangers of the river navigation, fire and unavoidable accidents excepted. And the said plaintiffs say, that although they, confiding in the said promises and undertakings of the said defendants, did then and there, to wit, on *the said 10th day of November, a. d. 1852, at Pittsburg aforesaid, to wit, at the said county ■of Muskingum, deliver to the said defendants, on board of said steamboat, said goods and chattels, to wit: 1 cask currants, 1 box liquorice, 10 boxes of tobacco, 2 cases of tobacco, and 157 bags of coffee, of the value aforesaid, to be carried and conveyed by the said defendants, in and by said steamboat, from the city of Pittsburg, aforesaid, to the said city of Zanesville, for fare and reward thereof, to be paid to the said defendants as aforesaid. Yet the said defendants, not regarding their said promises and undertakings, did not deliver the said goods and chattels in like good order in which they received them, to them, the said plaintiffs, or to their assigns, at Zanesville, to wit, at the said county of Muskingum, but wholly neglected so to do, notwithstanding they, the said defendants, were not prevented therefrom, because of any danger of the river navigation, fire, or other unavoidable accident; but, on the contrary thereof, they, the said defendants, their agents and servants in that behalf, conducted themselves so carelessly, negligently and un■skillfully in the premises, that by and through the carelessness, negligence, and unskillfulness and default of themselves and their servants, and for want of due care and attention to their duty in that behalf, the said steamboat afterward, and whilst she was carrying said goods and chattels from the said city of Pittsburg to the -city of Zanesville aforesaid, and before the arrival thereof at said city of Zanesville, to wit, on the day and year aforesaid, at Brunot’s Island, to wit, at the said county of Muskingum, run on a snag, then and there being, and sunk in said Ohio river, whereby the said goods and chattels, whilst the said defendants so had charge thereof, to wit, on the day and year aforesaid, at Zanesville, to wit, at the county of Muskingum aforesaid, became, and were and are, wholly lost to the said plaintiffs, and are of no value whatever, to wit, at the county aforesaid, to the plaintiffs’ damage of four thousand dollars ; and therefore they sue, etc.
    The bill of exceptions reads as follows:
    
      *Be it remembered, that upon the trial of this case, after1 the jury was sworn and before any evidence was offered, the counsel for the plaintiffs stated that he only claimed to recover upon the-third count of the declaration, and offered in evidence the bill of lading, of which a copy is attached to this bill of exceptions, and made a part thereof, which bill of lading the counsel for the defendants admitted, and also admitted their liability as claiméd by the plaintiffs, unless upon evidence thereafter to be introduced by them it should appeal' that they were not liable. It was also agreed by counsel on both sides that no evidence need be introduced as to. the amount of the plaintiffs’ damages, as in the event of the verdict being in favor of the plaintiff^, the true amount could be readily calculated and inserted in the verdict. The case then proceeded, the defendants introducing evidence tending to show that the injury to the plaintiffs’ goods was caused by the steamboat upon which they were transported striking a snag in the Ohio river and sinking, and. that the loss thus occasioned was to be attributed to the dangers of river navigation, one of the exceptions in a bill of lading. A question was then made before the court to this effect, namely: That, assuming that the loss was occasioned by one of the dangers of river-navigation, was it incumbent upon the plaintiffs to show such neglect upon the part of defendants as would make them liable, or-was it incumbent upon the defendants to show such care and diligence as would discharge them from liability: and the court then,, at the request and for the convenience of the parties, decided that the burden of the proof rested upon the defendants. The defendants ■ then further gave evidence tending to show that the said steamboat was, at and immediately before the loss, a good, staunch, strong, river-worthy vessel, having competent and skillful officers and crew, and that at the time of said loss, the pilot at the wheel was in the-discharge of his duty, pursuing such a course as a prudent pilot would pursue. In the course of the introduction of this testimony the defendants examined a number of pilots, who testified that, in their ^opinion, the conduct of Lyons, the pilot in charge of defendants’ boat, in the emergency, was correct and proper. Evidence was also given by the defendants, tending to show that, in passing down the Ohio river, near the foot of Brunot’s Island, on the-evening of November 11,1852 (when and where the loss occurred), the steamboat on which the goods were placed touched the rocky bottom on the larboard side of the boat, which caused the boat to-sheer to the right, and that the pilot straightened the boat and got her in her course while running slowly, the engine being in motion; immediately after which, the steamboat “Michigan” was seen,, apparently waiting at the foot of the island for the boat of defendants to pass, her furnace doors open, which had the effect of blinding the pilot of the latter boat, and causing him to go further to the right (with a view to avoid' collision with the Michigan) than he-otherwise would have done, — when the boat struck the snag and occasioned the loss. The defendants’ witnesses were cross-examined at length by the counsel for the plaintiffs, with'regard to the conduct of their pilot, Lyons, in the management of the boat át the-time and preceding the accident, the head of steam under which she was running, and whether or not it was proper and prudent to-run that channel under such a head of steam; but of none of them was the inquiry made, whether Lyons, the pilot, ought not to have-stopped the engine and floated down until past the snag and Michigan. When the defendants’ testimony was closed, the plaintiffs introduced several pilots as witnesses, who testified as to the general management of the boat at the time, and that it was, in their opinion, the duty of Lyons, the pilot, to have stopped the engine to-enable him to get the boat straight after she had sheered; that to straighten the boat with the channel, having sheered, as testified to by the pilot, in a channel as narrow as that was, was extremely dangerous, if not impossible; and that it was also his duty to have stopped the engine if apprehensive of a collision with the Michigan-, that if such collision should take place, no damage would have occurred therefrom.
    *When the plaintiffs’ testimony was closed, the defendants proposed to recall witnesses they had previously examined, and also some other pilots who had not been examined, and to prove by them that, in their opinion, it was not the duty of Lyons to have stopped the engine under the circumstances above detailed. To-this evidence the plaintiffs objected, and the objection was sustained by the court, and the evidence excluded, to which decision of the-court the defendants excepted. When the testimony was closed on both sides, and the counsel for the plaintiffs was about to address the jury, in opening the case, the court announced that two hours-only would be allowed to each side for the argument; thereupon the counsel for the plaintiffs proceeded with the opening argument for the period of one hour, and progressed so far as to speak fully ■of the testimony of the pilots in charge of the boat at the time of the accident, and then closed, stating that in his closing argument he would take up the testimony at that point. The counsel for defendants then stated that he should object to the counsel for plaintiffs saying anything to the jury in closing, which should not be in reply to defendants’ argument, and should object to his introducing new jioints in his closing argument, not alluded to in his opening, and the court being requested by the plaintiffs’ counsel, then to decide whether the request of defendants’ counsel would be acceded to, did decide that such request would not be acceded to, and did afterward permit the counsel for the plaintiffs to recommence his argument at the point at which he left it, and introduce new points in his closing argument not alluded to in his opening, and to address arguments to the jury in closing the case which were not in reply to anything which had been urged by the counsel for the ■defendants, to which rulings and decisions of the court the defendants excepted.
    In the further progress of the case, the court charged the jury that the defendants, to excuse themselves from liability for this loss, must show that it was occasioned by one of the excepted *perils, mentioned in the bill of lading, to wit: “ Dangers of river navigation, fire, or unavoidable accidents,” and that having shown that the burden then rests upon the defendants to show that the degree of care, which the law requires of them, was exercised, and that proof by defendants, that the loss was attributable to the ■danger of river navigation, did not throw upon the plaintiffs the burden of proving that such loss might have been avoided by the exercise of the proper degree of skill. The court then proceeded to state to the jury the three different degrees of neglect for which bailees were liable — corresponding to the three different degrees of ■care and diligence required of them, and that the defendants were bound to exercise the highest of these three degrees of care, and responsible for the slightest of these three degrees of negligence. 'To which opinion of the court, the defendants, by their counsel, ■excepted.
    After the rendition of the verdict, which, by consent, was filled up with the admitted amount of the loss, the defendants moved the ■court for a new trial, for reasons on file, one of which is based upon .an affidavit also on file, which motion was overruled by the court. And to this decision of the court, and all the other rulings aforesaid, defendants, by tbeir counsel, excepted, and pray the court to sign and seal this, their bill of exceptions, and that it be made a part of the record, which is now here accordingly done.
    The part of the bill of lading material to this report is as follows :
    “ Shipped in good order, and well conditioned, by D. Leech & Co., for account and risk of whom it may concern, on board the good steamboat called the Dan Convers, whereof is master for the present voyage, G-aligher, now lying at the port of Pittsburg,the following articles, marked or numbered as below, which are to be delivered without delay, in like good order, at the port of Zanesville (the dangers of river navigation, fire, and unavoidable accidents excepted), unto W. H. Davis & Co., or to his or their assigns; he ^or they paying freight for the said goods, at the rate of as per agreement, per one hundred pounds, and charges, $150.73.
    “ In witness whereof, the owner, master, or clerk of said boat hath affirmed to two bills of lading, of this tenor and date; one of which being accomplised, the other to stand void.
    “Dated at Pittsburg, this 10th day of November, 1854.”
    
      
    
    
      C. B. Goddard and E. B. Eastman, for plaintiffs in error:
    1. The ruling of the district court, that upon the then defendants rested the burden of proof, not only that the loss was occasioned by one of the excepted perils, but also that the loss could not have been avoided by the exercise of the highest degree of skill, is complained of as too strict an administration of the law in this case. This aetin is founded upon special contract — it is not charged that the defendants were common carriers, though if it were, we do not see that it ought to make any just distinction. Proof of nondelivery might require defendants to account for them. But do they not account for them when that the were lost by the dangers of the river navigation ? A loss proved to have happened in consequence of an unavoidable accident, is not the subject of any other or further proof. The highest degree of care could, not have guarded against it, and there need be no dispute as to the onus probandi in such a case. A loss by fire, or by the dangers of' river navigation, presents a different question. The defendants may be liable for a loss by the dangers of the river, and thóy may be* liable for a loss by fire, ^because either may be the result of such carelessness as would go to charge them. But the question in this case is, whether, when defendants have shown that the loss-was occasioned by one of these excepted perils, the court will superadd a presumption that it was occasioned by such neglect as to make them liable.
    We can comprehend why a court should say, with reference to such a contract as this, that it would be sufficient for the plaintiff to prove the non-delivery of the goods to give him a prima facie claim to recover, but it is not easy to understand that this prima facie claim-should continue after the defendant had shown a loss by one of the very perils excepted in his bill of lading. What we claim is this: that the burden of proof is not a constant, ever-flowing principle, adhering throughout to the side of the case to which it first attached, but that it varies with the shifting circumstances of the case-, and may be sometimes on one side and sometimes on another. This principle is sanctioned by the high authority of the Supreme Court of the United States, in Clark v. Barnwell, 12 How. 272.
    What is said upon this subject by the learned judge who delivered-the opinion of this court, in Davidson v. Graham, 2 Ohio St. 141, isobiter; but of the principle he enunciates in summing up, no complaint is here made. When the case goes to the jury upon this principle, and the prima fade case is admitted, and the loss is shown to-have been produced by a cause falling within the exceptions, we do complain if there is then superadded the burden of showing that this excepted point could not have been avoided but by the-highest degree of skill and care.
    The case of Whiteside v. Russell, 8 S. & W. 44, is relied upon to-sustain this extreme rigor. The bill of lading in that case contained the same exception which is found in this, and the loss arose-from striking a stone in the Ohio river. Judge Rogers (p. 49) says: “ It is not unreasonable to require the carrier to prove the loss and manner of it; and, further, that the usual care and diligence had been used to avoid it.”
    *We are held to proof of a very different kind of dili.gence. The court held us to the highest degree of care, and throw upon us the burden of proving that we had exerted it. It made us responsible for the slightest neglect, and required us to prove we were not guilty of it.
    II. We have little to say upon the other points excepted to. The .court can not read the bill of exceptions without perceiving how we were surprised by the evidence lastly introduced by the plaintdffs. We admitted their case, and set to work to prove how the -loss arose, and how we conducted at the time. Not a breath is whispered, until we have closed our evidence, as to its being the duty of the pilot to have stopped the boat, and then the plaintiffs -.spring upon us this new point, and we are not permitted to introduce evidence to overthrow it. To cap the climax, the plaintiffs have the opening and close, though we have the burden of •proof, and Mr. Jewett opens just so far as to come to the spring-gun -of his ease and stops, and is permitted in his reply to take up his .argument as he had his evidence, and urges a recovery upon a point -to which we had no opportunity of reply.
    
      Jewett & O’Neil, for defendants in error:
    I. It is not alleged in the declaration, in so many words, that the defendants below were common carriers; and such naked allegation would have been demurrable. But we do allege everything necessary and requisite in charging them as common carriers, and that, too, in the very language of the most approved forms; and it was .so treated on the trial, as evidenced by the admissions of the plaintiffs in error. 2 Chit. 356, 364, and notes; Ib. 664, and notes; Swan’s Prec. vol. 1, 259, note.
    II. The degree of care required of the plaintiffs in error was the •same required of common carriers in all cases. And the ruling of •the district court as to the burden of proof was not erroneous. It was on account of the hazardous uncertainty of *that class of witnesses — the men by whose negligence, unskillfulness, or recklessness the loss was occasioned — that many of the most enlightened •.courts of this country have refused to entertain the doctrine that a •common carrier could, by special contract, limit his liability. 19 Wend. 234, 251; 1 Hill, 623; 2 Ib. 723; 10 N. H. 487; 10 Met. 479 2 Kel. 349.
    The case of Davidson v. Graham, 2 Ohio St. 132, settles, in Ohio, the principles upon which the liability of common carriers rests, and the rules of evidence by which it is to be ascertained. We can not for a moment suppose that this court will review an opinion delivered after such mature consideration, in a matter of such vital importance, and so fully sustained by authority. 2 Greenl. Ev., sec. 219; Ang. and Am. Law of Car., secs. 168, 202; Story on Bailm., sec. 509, 529; 8 Watts & Serg. 44.
    In Clark v. Barnwell, 12 Howard, the question was not considered in the court below, nor was it supposed, necessarily, to arise. It was not presented in the brief of the counsel for the appellants, who considered the case as it was presented and disj>osed of in the court below. The counsel for the appellees merely stated the proposition, without citing the authorities in its support or illustrating it by argument. The court evidently treated it as an incidental question, without giving to it that consideration which its importance deserved. The case referred to in support of the opinion of the judge (Muddle v. Strider, 9 Car. & Payne, 380) should not be considered as settling any question, more particularly one-so important as this, it being but the opinion of a single judge, expressed incidentally, in the hurry of a trial, to the jury, without consideration, and in the absence of argument; and the opinion is a divided one, Taney, C. J\, and Wayne, J., dissenting.
    If the position of our Supreme Court, in Davidson v. Graham, be-maintained, we will be saved much of the confusion and many of the calamities that followed the first innovations on the law, as originally established for the government of common carriers. *But change the doctrine — shift the burthen of proof from the carrier to the owner — and this court, with all others in our country, will have occasion to indulge in the same regrets to which the judges, of the courts of England were so frequently constrained to give utterance, on witnessing the consequences which flowed from such innovations. 1 Starkie, 72; 3 B. & Bing. 177; 5 East. 507.
    (The other points of counsel relate to the matters referred to in No. II, of the argument of counsel for plaintiff in error. It is not. thought necessary to extend this report by inserting them at-length : counsel for defendants in error maintaining that the matters complained of were within the discretion of the court, trying-the cause, and that that discretion was rightly exercised, but that at all events it can not be reviewed on error.)
   Ranney, J.

That the plaintiffs in error were common carriers, and as such undertook to transport the goods of the defendants from Pittsburg to Zanesville, and that they were never delivered at the port of destination, are facts, not only sufficiently averred in the declaration, but were substantially admitted upon the trial. The bill of lading certified, that the goods were received in good order, on board the steamboat Dan Convers, and bound the carriers to deliver them without delay, in like good order, “ the dangers of river navigation, fire, and unavoidable accidents excepted.” The declaration averred, that they were not prevented from making the delivery by any of the excepted perils ; but that the goods were lost by the careless navigation of the boat, by which she was snagged and sunk, at the foot of Brunot's island, in the Ohio river. Upon this averment the parties were at issue — the plaintiffs in error claiming that the loss was occasioned by one of the excepted dangers of the navigation; and they now insist that the court below erred in casting upon them the burden of proving that the accident happened without their fault, while the boat was being navigated with the highest degree of care; and in rejecting certain evidence offered by them.

*1. The question presented upon the first point, arises upon the charge, in which the jury were instructed, that it was incumbent upon the carriers, not only to show that the loss was occasioned by one of the excepted perils mentioned in the bill of lading, but that the proper degree of care was exercised to prevent the loss ; and after stating the three degrees of care required of bailees, under different circumstances, that the carriers were bound to the exercise of the highest of these degrees of care, and responsible for the slightest of the three corresponding degrees of negligence. Counsel for the plaintiffs in error admit, that it was incumbent upon them to have shown that the goods were lost by one of the excepted perils; but they insist that the burden of proof was then shifted upon the owners, and that they were bound to prove negligence before the carriers could be charged. "We think this dividing a thing in its nature indivisible. Either the loss was occasioned by a peril of the navigation, or by the negligence of those in charge of the boat. It must have been the one or the. other, and could not have been both. If proper care could have avoided it, it was not a peril incident to the navigation ; if such care could not, it was. From the very nature of the undertaking, without care, the loss was inevitable; and with care, it might be unavoidable. From the failure to deliver the goods, the law raised the presumption of negligence against the carriers — prima facie, the fault was theirs — and this presumption could only be rebutted by showing that they wore without fault. As positive care was indispensable to the safety of the goods, they could meet and overthrow the legal presumption of negligence, in no other way than by showing that such care was exercised. Proof that the boat was snagged, fell short of proving that it was not snagged by the fault of those in charge of it; and, consequently, short of overcoming the prima facie case of the plaintiffs below. To do this it was not enough to have shown, that the loss was occasioned by what might, or might not, have been a danger of the navigation: nothing short of proof that it was the *one, and not the other, could have been sufficient; as nothing short of that could bring the case within the exception provided for in the contract.

The defense rested wholly upon this exception. No attempt was made to bring the case within either of the common-law exceptions to the carrier’s liability.

In the case of Davidson v. Graham, 2 Ohio St. 131, it was settled by this court, that the carrier might, in this manner, limit his common-law liability. But in adopting so important a principle, the court very carefully considered all its bearings; and endeavored to incorporate it into the law of this state, with such qualifications and restrictions, as seemed to be necessary to make it safe and practicable.

Yery strong arguments (thought to be unanswerable by several eminent judges in our sister states) were advanced against any relaxation of the common-law responsibility. It was said, that the highest considerations of public policy required the carrier to become an insurer of the goods intrusted to him,' against everything but the act of God, or the public enemies. That he took upon himself a public employment; and ought not to be permitted to discharge himself from the responsibilities, which the trying test of time and experience had demonstrated to be necessary for the safety of 'the public. That since the introduction of steamboats and railroads, he had, practically, taken exclusive possession of the public ■thoroughfares of the country; and was thus enabled to impose his own terms upon the owners of goods, who had no choice but to employ him. That the owner seldom accompanied his property, and in case of loss or injury, however gross the negligence might have been, was wholly unable to prove it, without relying upon the servants of the carrier, who would always be found too ready to exculpate themselves, and their employer.

, That these considerations were entitled to much weight, can not be doubted; and they were not, to any extent, lost sight of in. •^determining that the parties might by their agreement, to a ■certain extent, restrict the liability of the carrier. He is still regarded as exercising a public employment, and incapable, by any •act of his own, of limiting or evading, the responsibility which the law ■.attaches to its exercise.

The first attempt to do so, by general notices brought home to the owner of the goods, was, for a considerable time, sustained by the English courts — with the frequent expression of regret, however, by distinguished judges, that it had ever been so held — until, <at length, the evil was remedied by an act of Parliament. The ■courts of this country very generally repudiated the doctrine, and. escaped the regrets of the English courts. Hollister v. Nowlan, 19 Wend. 235; Cole v. Goodwin, Ib. 251; Wells v. The Steam Nav. Co., 2 Com. 204; New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344; Jones v. Voorhees, 10 Ohio, 145.

The implied assent of the owner of the goods to the terms pre■scribed by the carrier, upon which the English eases are founded, it is very conclusively shown in the American cases, can not be fairly .assumed; since the carrier is bound to receive and transport alL •goods offered for the purpose, subject to all the responsibilities incident to his employment; and the owner may be quite as fairly presumed to have intended to insist upon the rights he undeniably had, as to have assented to a qualification which the carrier had no right ■to impose.

But a very different question was presented, when cases arose in. •which the owner had expressly assented to such qualification, and made it a part of the contract of transportation.

In such cases, the very obvious conclusion was reached that such ■■a stipulation was valid when it only affected the rights and interests of the owner of the goods. So much of the responsibility of the-carrier as was designed alone for his security, might at his pleasure be renounced, in accordance with the settled maxim of the law— Quilibet potest renunciare juri pro se introducto.

*The limit to this power was equally obvious. The common-law exception to the carrier’s liability of losses arising from the act of God, was well settled, to include only those inevitable-causes of loss into which no human agency could have entered. This left the carrier liable as an insurer for many losses, equally inevitable, and which no care or prudence on his part could have-prevented. No one but the owner of the goods could have any interest in this liability, and as its renunciation had no tendency to-relax the vigilance which the carrier owed to others, the owner was-at liberty to surrender it. But he had no power to stipulate for what was immoral in its tendency, or to take from the carrier any of the motives to the faithful discharge of his public duty, and consequently could not relieve him from the consequences of his own negligence or carelessness.

There is nothing in which the public have a deeper interest than the careful and prudent management of public conveyances, and no higher mtiral obligation than rests upon those intrusted with the control of dangerous forces, to discharge their duties with care and skill. Upon it the safety of thousands of lives and millions of qmoperty daily depends.

Now, one of the strongest motives for the faithful performance of these duties, is found in the pecuniary responsibility which the carrier incurs for the failure. It induces him to furnish safe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with one to relieve him from any part of this responsibility, reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral, becauses it diminishes the motives for the performance of a high moral duty; and it is against public policy, because it takes from the public a part of the security they would otherwise have.

Nor did the establishment of the principle that the carrier might, by contract, restrict his common-law liability, in any manner, or to any extent, change the rules of evidence before ^applicable to the subject. Before, the law prima facie imposed upon him the obligation of safety, and he was charged upon proof of the nondelivery of the goods. The burden of proof was upon him to bring the case within one of the excepted perils. Ang. on Carriers, sec. 202; Story on Bailm., sec. 529. And it was not brought within the exception, -until it was shown that care and skill could not have-prevented the loss. 2 Green. Ev., sec. 219. We know not where-this rule of evidence has been doubted, except in a divided opinion-of the Supreme Court of the United States, in the case of Clark v. Barnwell, 12 How. 272. The learned judge who delivered the-opinion of the majority was able to bring to his support only the single nisi prius case of Muddle v. Strider, 9 Carr. and Payne, 380, in which Lord Denman instructed the jury that, in passing upon all the evidence before them, they must be able to see clearly that-the carriers were guilty of negligence, before a verdict was found against them.

Judge Nelson very properly admits, that it was incumbent upon-the carriers to have shown a loss from some one of the causes which, by the general rules of law, or the particular stipulations of the-parties, would have furnished an excuse for the non-performance of the contract; and that if reasonable skill and attention could have avoided it, “it is not deemed to be, in the sense of the law, such a-loss as will exempt the carrier from liability, but rather a loss-occasioned by his negligence and inattention to his duty.” But he fails to show how, in the nature of things, where constant care was indispensable, the loss could be shown to have been inevitable, without giving prima facie proof that such care was exercised; or what-reason, founded in public policy or intrinsic justice, could be given for relieving the carrier, within whose knowledge the facts so-peculiarly lay, and by whose agents they could be so easily established, from the necessity of making such proof, and casting the burden of proving the contrary upon the owner of the goods, in most cases ignorant of the facts, and without the means of making' them appear.

*On the whole, we think Mr. Greenleaf fully justified upon principle, and the decided weight of authority, in saying that, “ in all cases of loss by a common carrier, the burden of proof is on him to show that the loss was occasioned by the act of God, or by public enemies. And if the acceptance of the goods was special, the-burden of proof is still on the carrier to 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.” 2 Green! Ev., sec. 219.

We have alluded, somewhat at length, to the effect of the decision, in Davidson v. Graham, not because all the questions now discussed5. were not fully considered by the court and explicitly siated, but because some of them were not so directly involved as in the pres<ent case, and from a desire to be as explicit as possible upon a subject so highly important to a state whose surplus productions must all find a market through the intervention of common carriers.

The whole may be summed up in this: the carrier, by agreement with the owner, may exonerate himself from responsibility for losses arising from causes over which he has no control, and to which his own fault or negligence has in no way contributed. But in doing so he does not cease to be a common carrier, nor in any manner change his relation to the public as such; and he can only excuse .himself for a failure to deliver the goods intrusted to him, by showing that, without his fault, he has been prevented by some one of the ■causes recognized by law, or specifically provided for in the contract.

This case requires very little to be added as to the degree of care -exacted of the common carrier. We have already said that he is not at liberty to stipulate for any degree of negligence, and that a .loss from negligence can not be within the stipulated exceptions to his liability. Indeed, in the carriage of passengers, and perhaps of goods, by steam, it might not be difficult to place it upon much higher grounds, and to fully justify the remarks of *Mr. Justice Grier, in delivering the opinion of the court in the case of Philadelphia and Reading Railroad Company v. Derby, 14 How. 468. He says: Where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and .safety require that they be hold to the greatest possible care and diligence. And whether the consideration for such transportation •be pecuniary or otherwise, the personal safety of the passengers ■should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the -epithet of gross.”

But it is only necessary now to say, that if the loss was occasioned by negligence, whether slight or gross, it was not within what was, or could have been made by contract, an exception to the -carrier’s liability.

We are therefore unanimous in the opinion that the district court was right in holding that the burden of proof was upon the carriers to show that there was no negligence or want of care, and that, if the loss was the result of any negligence on their part, it was not within any exception provided for in the contract.

2. The court are not unanimous upon the second question presented. A majority, however, concur in holding that no error was committed. From the bill of exceptions it appears that the principal controversy in the case related to the conduct of the pilot at the wheel, at the time the accident happened. The defendants below gave evidence to show the situation of the boat, the surrounding circumstances, what the conduct of the pilot was, and the head of steam under which he was running; and then called several experienced pilots, who expressed the opinion that the conduct of the pilot in charge of the boat was correct and proper. The plaintiffs-then introduced several pilots, who expressed a different opinion, and thought the pilot in charge should have stopped the engine. The defendants then proposed to recall their witnesses, and also some other pilots who had not been examined, and to prove by them that, in their opinion, it was not *the duty of the pilot to have stopped the engine. This evidence being objected to, was ruled out.

It will be observed, that all these witnesses were giving opinions upon exactly the same circumstances. No attempt was made to-change or vary them in the least. Under the circumstances, the defendants’ witnesses were of opinion that the pilot was right in keeping on steam, and doing just as he did do. With a view to the same circumstances, the plaintiffs’ witnesses were of a different opinion, and thought he should have shut the steam off. Now, what could have been accomplished by recalling the defendants’ witnesses, other than a repetition of the opinion previously expressed, we are quite unable to see. It is true, they might have said, expressly, that the pilot should not have stopped the engine (a question they had not before been asked), but, in the end, it would amount to nothing more than an opinion, that he should have done as he did, and not differently. There can be no dispute as to the general rule of evidence. The party upon whom the affirmation of an issue-devolves, is bound to give all his evidence in support of the issue,, in the first instance; and he can only give such evidence, in reply, as tends to answer the new matter introduced by his adversary. In this ease no new matter was introduced. The opinions of the defendants’ witnesses were simply encountered by those of the plaintiffs’. But while this is the rule, and generally to be adhered to, I am very far from saying that, in the exercise of a sound discretion, it is never to be relaxed. Indeed, very few cases can arise in which .a court would be justified in closing the case, until all tbe evidence ■offered in good faith, and necessary to the ends of justice, has been her.rd. And it is very probable, in this case, that a fuller examination should have been allowed. But this must always be an appeal to the sound discretion of the court, to be determined with a view to all the circumstances, and however determined, is not reviewable ■ on error. It is our duty to see that the rules of law are not infringed, but we can not revise the mere discretion of an inferior tribunal.

*J. R. Swan, J.

I concur in the opinion, that the burden of proof was upon the carriers to show that there was no negligence; .and that, if the loss was the result of any negligence, it was within any exception provided in the contract.

But in thus holding and requiring proof by the carrier of the •cause of the loss and of care, the course of proof in the case must, necessarily, be thus: the plaintiff first proves the' delivery of the .goods to the carrier, and that they were not received by the plaintiff. This entitles the plaintiff to recover. The carrier must then prove that the loss arose from one of the exceptions provided for by the ■contract, and that the servants of the carrier were in the due exercise of care. This proof made out prima facie, would entitle the carrier to a verdict. The plaintiff then may prove any fact or omis•sion of duty establishing negligence. If this fact be a specific one, upon which the witnesses of the carrier were not examined, such, •for instance, as that the engine should have been stopped, it is, I ■conceive, the right of the defendant to rebut such testimony; for the specific fact, and omission of .care, upon which the action is founded, is then for the first time disclosed and proved by the plaintiff. According to my view of the case, under the rule adopted by the majority of the court and applied in this case, the carrier is first required to make out & prima facie case of care, and then, when the plaintiff proves his cause of action, the defendant is precluded from giving evidence in his defense; for how can he anticipate what act of negligence will be proved against him? Surely, he is not to come prepared with witnesses to rebut every possible claim of neglect that may be alleged. This would require witnesses to be produced at perhaps great cost, and consume the time of the court, in rebutting claims never intended to be made by the plaintiff.

The present action was brought to recover damages on account •of loss of goods arising from the servant of the carrier not stopping his engine, under circumstances which due care demanded. The ■ground of the action was not disclosed by the pleadings or *the proof, or by any reference to it in the examination of witnesses, until the plaintiff gave in his rebutting testimony. I think the judgment should be reversed.

Thurman, C. J., concurred with Judge Swan.  