
    The Union Express Company v. A. A. Graham.
    1. Where a common carrier claims immunity for the loss of goods with which he had been intrusted, on the ground that such immunity is secured by a special agreement, the burden is on him to prove that the loss was occasioned without his fault.
    2. The only effect of such an agreement is to relieve the carrier from the liabilities imposed by the common law where he is free from fault or neglect.
    3. A carrier may refuse to receive for carriage an article of property which is improperly packed. But if he receives it he is bound .to exercise duo care for its safe carriage; and if, while in his charge, the property is injured, the duty rests on him to show that the injury is attributable to the defective packing, and not to any fault or neglect on his part.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Portage county.
    The plaintiff in error, a corporation, is a common carrier, engaged in carrying goods for hire from Cleveland to Ravenna, Ohio, and other places.
    The original action was brought by A. A. Graham, the defendant in error, against the plaintiff in error, to recover for the failure of the latter to safely carry a foot-rest from Cleveland to Ravenna. The case was submitted to the court for trial, and the court found the facts in issue specially.
    Erom this special finding, it appears that on the 24th day of December, 1873, the defendant in error delivered to plaintiff in error, at Cleveland, the foot-rest in question, to be carried to Ravenna, the same being then unbroken and in good condition, except as to packing; that said foot-rest was made of wood, the feet and legs being of carved black walnut, of a fragile nature, liable to be easily broken, and that the same, when delivered, was packed in heavy brown paper, and tied with a cord; that the usual and ordinary manner of packing such articles for shipment was to put them in a wooden box or truss; that plaintiff' in error notified defendant in error that the foot-rest was not properly packed, and refused to receive the same, except at “ owner’s risk,” and thereupon the same was delivered to plaintiff, upon the special understanding and agreement that the same was to be received and carried by plaintiff in error, at the risk of the defendant in error, he being the owner thereof.
    The court also found as follows :
    “ 5. That while said foot-rest was in the possession of defendant, between the time of its delivery in Cleveland and the time it reached its destination in Ravenna, the same was broken and damaged; but there was no evidence to show, and the court can not ascertain, the time when, or place where, or cause by which the same was so broken .and damaged.
    6. That the defendant, by the use of extraordinary care .and diligence, could have carried said foot-rest from Cleveland to Ravenna, and delivered the same to the plaintiff, without the same being injured, and that the same was not injured by accident or any cause over which the defendant had no control, and against which defendant could not possibly protect the same.
    “ 7. That there is no evidence that defendant failed to exercise ordinary care and diligence in taking care of and carrying said foot-rest, or that the same was broken or injured by reason of any want of ordinary care or diligence on the part of the defendant; and that, except as to the facts found by the sixth and last finding herein, the defendant was not shown to have been guilty of any negligence or want of care of any kind whatever in the premises. The defendant charged for carrying said foot-rest double the rate charged by it for carrying ordinary goods and chattels, but the same rate charged by it on all articles of furniture, said foot-rest being an article of furniture.”
    Upon the foregoing findings the plaintiff' in error (defendant below) moved the court for judgment in its favor. This motion was overruled, the court being of opinion that upon the facts so found the plaintiff' was entitled to recover, and assessed his damages, for which judgment was rendered.
    On error, the judgment was affirmed by the District Court. The object of the present proceeding is to obtain the reversal of these judgments.
    
      J. B. Horton, for the motion,
    on the question to what extent the liability of a common carrier can be relieved against by special agreement, cited: Alaving v. Todd, 1 Starkie, 59; Seeson v. Holt, lb. 148; Gould v. Hill, 2 Hill, 625; 2 Kelly (Ga.), 340; 10 Met. 479; Neio Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344; Camden and .Amboy B. JR. v. Baldauf, 16 Penn. St. 67; Cole v. Goodwin, 19 Wend. 251; lb. 235; Wells v. Steam, NdV. Oo., 2 Comst. 204; 6 ITow. 344; Jones v. Voorhees, 10 Ohio, 145 ; Davidson v. Graham, 1 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; Welsh v. P. F. W. P. E., 10 Ohio St. 65; 2 Greenl. Ev. sec. 226.
    
      C. A. Eeed, contra,
    claimed the burden of proof was on the carrier to show that the loss or damage was occasioned by no negligence or want of care on its part. Davidson v. Graham, 2 Ohio St. 139; 4 Ohio St. 362; 19 Ohio St. 1, 14, 225; 10 Ohio, 146 ; 2 Greenl. Ev. sec. 219.
   White, J.

It is settled by a series of decisions in this state, that a common carrier can not, by stipulation with his employer, exempt himself from liability for loss or damage occasioned by his own negligence or that of his servants. Graham v. Davis, 4 Ohio St. 362; Welch v. P. F. & G. R. R. Co., 10 Ib. 65 ; Railroad Company v. Curran, 19 Ib. 1.

The same rule is fully recognized by the Supreme Court of the United States. Railroad Company v. Lockwood, 17 Wall. 357.

The rule inhibiting such stipulations is founded on public policy, and grows out of the public nature of the carrier’s employment.

It is also settled that where a common carrier claims immunity for the loss of goods with which he has been intrusted, on the grounds of a special contract securing such immunity, the burden is on him to prove that the loss was occasioned without fault or negligence on his part. Graham v. Davis, supra.

The present case is sought to be withdrawn from the operation of these rules by the fact that the property in question was not .properly packed when delivered to the carrier; and it is claimed that, under the circumstances, the carrier is to be regarded as a mere bailee for hire.

We do not assent to this view.

The plaintiff in error, while engaged in the business of a. common carrier, could not by agreement divest itself of that character.

The only effect of the agreement was to relieve it from the liabilities imposed by the common law on public carriers where there was no fault or neglect on the part of the carrier.

The carrier may well refuse to receive the property, unless it is properly packed. But if he receives it the duty attaches of exercising due care for its safe carriage. If, notwithstanding such care, the property should be damaged through the defective packing of the owner, the carrier would be relieved from liability. But where, as in this case, the carrier takes charge of the property for the purposes of carriage, the duty rests on him to show that the injury is attributable to the defective packing, and not to any fault or neglect on his part.

This the plaintiff in error failed to show.

It appears from the special finding that there was no evidence to show, and the court could not ascertain the time when, or place where, or cause by which the property in question was injured. On this state of fact, we find no error in the judgment.

Leave refused.

Welch, C. J., Rex, Gilmore, and MoIlvaine, JJ., concurred.  