
    EMANUEL S. SUTRO, et al., Plaintiffs and Appellants, v. JAMES O. FARGO, Pres’t., &c., Defendants and Respondents.
    COMMON CARRIER.
    It seems to he now clearly established that where goods are intrusted to a common carrier for transportation, and there is a loss from a cause excepted by the contract (for example as in the present case by fire),that the onus of showing negligence on the part of the carrier rests upon the party claiming damages for the loss (Lamb e. Camden and A. R. R, Co., 46 JV, 7, 271; Cochran v. Dinsmore, 49 M T, 249),
    The fact of a loss by fire or from the cause excepted in the contract, while the goods are in the custody of the earlier, does not establish a presumption of negligence on the part of the carrier, Where there was evidence of tbe'destrdctioii of the goods by fire, or from the cause excepted by the contract, Without evideace of fault or negligence on the part of the earner, the judge should not direct a verdict in favor of the plaintiff, and against the carrier, but should submit the case of the defence to the consideration of the jury.
    Before Curtis and Sanford, JJ.
    
      Decided May 1, 1876.
    Appeal by the plaintiffs from a judgment, and from an order denying the plaintiffs’ motion for a new trial.
    The plaintiff's are merchants doing business in the city of New York, as dealers in tobáceo and cigars. The defendants were common, carriers from New York to the Western and Northwestern States, known as “The Merchants’ Dispatch Transportation Company.”
    This action is brought to recover of the defendants the value of cigars and tobacco shipped by defendants’ line on September 30, 1871, to Fred. Dant & Co., at Muscatine, Iowa, and Campbell & Bailey, at Kansas City, Missouri. The goods were shipped under contracts which are set out in the complaint, and admitted by the answer. Under these contracts, loss by fire is excepted. The property was taken in the regular-course of business as far as Chicago, and arrived there on Saturday night, Oct. 7, 1871, at 7:50 p.m. • Car No. 1075 contained the goods consigned to Fred. Dant & Co., which was unloaded at Chicago, and left the depot there the next morning at 10:20 a.m.
    The goods consigned to Campbell & Bailey, were carried to Chicago, -in car No. 2340. This car arrived at Chicago on the same train with car No. 1075, and thereafter all trace of it is lost. No deliveries were made at Chicago on Sunday. On Sunday night, Oct. 8, 1871, the great Chicago fire broke out, and early Monday morning reached the depots, where this property was, and consumed the buildings and their contents.
    On September 30, 1871, the firm of Buchanan & Lyall also delivered to the defendant forty-four packages of plug tobacco, directed to Fred. Dant & Co., Muscatine, Iowa, and to be delivered at Chicago, 111., under the contract set forth in the complaint.
    Before this action was commenced the plaintiffs became the owners of this last-mentioned claim. It was admitted upon the trial, that a proper demand of the goods mentioned in the complaint wms made of the defendants, and before the action was commenced. It was admitted, that the goods were not delivered as required by the agreements. The defendants claimed that the goods were destroyed by the great fire at Chicago, on October 9, 1871, without fault or negligence on their part. The case was submitted to the jury on the questions whether these goods were destroyed by the Chicago fire, and, if so, whether any fault or negligence of the defendants contributed to the loss. The jury found a verdict for the defendants ; and from the judgment entered thereon and from an order entered deny - ing a new trial these appeals are taken.
    
      W. Gleason, for appellants
    
      Hamilton Cole, for respondents.
   By the Court.—Curtis, J.

The plaintiffs’ exception to the refusal of the judge to direct a verdict in their favor, is not well taken. There was evidence of the destruction of the goods by fire, without fault or negligence on the defendants’ part, which it was the province of the jury to consider, and which was prop^ erly submitted to them.to pass upon.

The plaintiffs also except to the refusal of the judge to charge that the burden rested upon the defendants to disprove negligence. It seems to be now clearly established, that where goods are entrusted to a common carrier for transportation, and there is a loss from a cause excepted by the contract, for example as in the present case a loss by fire, that then the onus of showing negligence is on the plaintiff (Lamb v. Camden and A. R. R. Co., 46 N. Y. 271 ; Cochran v. Dinsmore, 49 N. Y. 249).

In the present case, the court charged the jury, that the defendants were liable for the loss, if it occurred by reason of their negligence, but that it was for the plaintiffs to prove it. The mere fact of a loss by fire while the goods are in the custody of the carrier, fails to establish the presumption of negligence, on the part of the carrier. The plaintiffs’ exception in this respect is not tenable.

The remaining exception of the plaintiffs is to the instruction of the court to the jury to the effect, that they were authorized to consider whether the defendants. could have taken the goods away; and also whether people could have been collected to do something for a third party.

It is not apparent how this prejudices the plaintiffs. The court gives the jury wide latitude to consider the circumstances and exigencies of this vast conflagration, which is described in the testimony, and the means and probability on such an occasion of saving property. The jury had to consider the question of negligence by defendants, since it was submitted to them to determine. There was no impropriety in view of their passing upon such a question, in the court presenting to their consideration the matters excepted to. There was evidence on the part of the defendants as to the difficulty of saving the building and its contents where the goods in question were, and also as to the impossibility, from the extent of the fire, of concentrating men or cars to remove anything.

But there is another difficulty with the plaintiffs’ case. The evidence at the trial does not show negligence on the defendant’s part. The defendants appear to have fulfilled the obligations they incurred by the contracts. They made no deliveries in Chicago on Sunday, and there is no proof or presumption of law from the proofs that it was their duty to do so.

The testimony in relation to the destruction of the goods, by the burning of the defendants’ building at Chicago, sustains the finding of the jury on that question.

The judgment and order appealed from should be affirmed with costs.

Sanford J., concurred.  