
    George R. Tarbox & al. versus Eastern Steamboat Company.
    The owner of property, in order to recover of a common carrier for hire, damages for loss or injury to the property, — after proving a contract, express or implied, for the carriage of the goods, and the delivery of them to the carrier, — needs only to show further that the goods have not arrived or have received injury, unless the carrier proves the performance of his contract.
    A bill of lading signed by the carrier, acknowledging the receipt of the goods, “to be delivered in good order to A at B,” is prima facie evidence that they were in good condition when received by the carrier, but is not conclusive, and the carrier may prove that the goods were damaged before they came into his possession.
    In such a case, the burden is on the carrier to exhibit such proof.
    It is not important whether the words “in good order,” or “well conditioned,” or both, are used in the receipt or bill of lading, the phrases being substantially synonimous.
    Where the burden of proof is thrown upon one of the parties by the state of facts presented, it does not shift from one to the other as the weight of evidence varies by the introduction of fresh testimony, but rests ón the same party on whom it was thrown at first, until the proof is such as to present a new and distinct question.
    In a suit against a common carrier for hire, for loss or injury to goods delivered to him to carry, the burden is not on the owner to show afiirmatively that the loss or damage was occasioned by neglect or want of diligence on the part of the carrier, as would be required in the case of an ordinary bailee.
    On Exceptions to the ruling of Goodenow, J.
    
    Case against the defendants as common carriers for alleged damages to 100 barrels of calcined plaster by their negligence in transporting the same from Eastport to Portland in the steamer Admiral. Plea, general issue.
    It appeared that the plaintiffs are manufacturers of calcined plaster at Calais, and, in May, 1857, shipped 100 barrels by a small schooner to Eastport, to be forwarded to S. N. Beals & Co., Portland.
    
      Evidence was introduced by the plaintiffs, tending to show that the plaster was carefully headed up in suitable casks, was dry when put on board the schooner, and was not exposed to wet until it was delivered to the defendants, except that a part of the casks were on the schooner’s deck covered with a tarpaulin, during a very slight shower, while discharging at Eastport; that it appeared to be dry when handled at Eastport, and that the defendants’ agent received it on board the steamer without objection, and signed a bill of lading, a copy of which will be seen in the opinion of the Court; that, after the plaster was delivered to the consignees in Portland, it was found to have been wet and damaged ; that the defendants’ agent was notified of the fact, J. C'. Noyes was called in to examine the plaster, and estimate the damage, and fifty dollars damage was claimed, and was allowed by the plaintiffs.
    The defendants introduced testimony, tending to prove that the plaster was placed in their storehouse at Eastport as soon as received; that it was transferred to the steamer next morning, and placed on skids under cover; that the passage was very pleasant, and not at all stormy or wet; that it was landed on the wharf in Portland in the same condition as when received, and that, although they had a sail for the purpose of covering freight on the wharf when necessary, they had no occasion to use it, the weather being pleasant. '
    It further appeared that some of the barrels were opened on the. wharf by one of the firm of Beals & Co., and the plaster found to have been wet and hardened or set, next to the heads and staves, some more and some less. Beals & Co. objected to receiving it, but, after some conversation with the agent of the defendants, did receive it, and paid the freight, reserving the question of damages to be settled subsequently.
    The defendants contended that the burden' of proof was on the plaintiffs to show that the plaster was damaged while in the possession of the defendants as common carriers; that the phrase "in good order” in the receipt signed by Hays referred to the external appearance of the packages, and was not even prima facie evidence in relation to the condition of the contents; and that the plaintiffs, in order to recover, must show affirmatively that the injury occurred through want of diligence or neglect of the defendants. The defendants further requested the Court to instruct the jury, that unless they were satisfied by the evidence that the injury occurred while the plaster was in their possession, or that of their agents, their verdict should be for the defendants.
    The Court did not so instruct, but instructed the jury, that the burden of proof was on the plaintiffs; that the receipt or bill signed by George Hayes, dated May 27, 1857, was prima facie evidence that the plaster was in good condition when received by the defendants, but that it was not conclusive; and that it was competent for the defendants to prove that the plaster was damaged before it came into their possession.
    The verdict was for the plaintiffs and the defendants excepted.
    
      Hayden, for the defendants,
    in support of the exceptions, argued that the words " good order” referred exclusively to the external condition and appearance of the barrels at the time they wore received, and were in no sense an admission or warranty of the quality or condition of the contents. The defendants are liable for injury happening to the contents while in their possession; but the receipt is not an agreement that the contents were uninjured when received.
    Admitting that signing a bill of lading acknowledging the goods to have been received " in good oiMer and well conditioned,” raises a presumption that the loss or damage was occasioned by the default of the carrier, as decided' in Hastings v. Pepper, 11 Pick., 41, the burden of proof is on him to show that it arose from a cause existing before his receipt of the goods, or a cause for which he is not responsible. But we submit that this liability, in regard to the contents of packages not open to inspection, comes from the words " well conditioned,” and not from the words " good order.” "Grood order” relates to that which is seen and open to inspection; " well conditioned” may refer to the condition of the contents. These words are not found in Hayes’ receipt.
    The use of the words " good condition” in the Judge’s instructions may have misled the jury, as the words " condition” and " order” are not synonimous. If the Judge had left it to the jury to determine when and how the plaster came to be damaged, with the burden on the plaintiffs to show fault on the part of the defendants, or without regard to the burden of proof, they must have found a verdict for the defendants.
    The Judge, in effect, charged the jury that the defendants, having signed the receipt, were bound to show by positive and direct testimony that the injury did not occur through causes for which they were liable, whereas, he should have stated that it was for the plaintiff, aided by the receipt, to show that it did occur through such causes. Ross v. Gould, 5 Maine, 204; State v. Flye, 26 Maine, 312; Stone v., Gowen, 18 Maine, 174; Ferry v. Russell, 13 Pick., 69.
    
      F. A. Pike,' for the plaintiffs, contra,
    
    argued that the words " good order ” and " well conditioned ” were synonimous. The forms of bills of lading vary. In the reported cases, no distinction is made. Clark v. Barnwell, 12 Howard,. 293; Barrett v. Rogers, 7 Mass., 297; Hastings v. Pepper, 11 Pick., 41. The words "well conditioned” are now generalfy omitted as redundant.
    The words of the contract should have their full force, according to their ordinary signification. In Olark v. Barn-well, the master of the vessel added to the bill the words " contents unknown,” and this was held to limit its effect to the external condition of the package.
    
      2. The plaintiffs alleged negligence on the part of the defendants. Of course, the burden of, proof is on them to show negligence. The Judge so instructed the jury.
    The evidence is, that the plaster, when it arrived at Portland, was wet to the extent of one-third of its value, and not only so, but the casks were wet outside. It is equally well proved that the casks were not wet when they left East-port. The inference is plain, that the casks must have become wet on their passage in the steamer.
    The Judge would have erred, if ho had instructed the jury that it was the duty of the plaintiffs to " satisfy ” the jury that the damage happened by the defendants’ default. It is not the part of the plaintiff to "satisfy” the jury. Even in criminal cases, the State is not required to " satisfy ” a jury absolutely, but only beyond a reasonable doubt, that the prisoner is guilty. State v. Webster, 5 Cush., 319. In civil cases, the duty of the jury is to weigh the evidence carefully, and to find tor the party in whoso favor the evidence preponderates, although not free from reasonable doubt. 3 Greenl. Ev., § 29; 1 Greenl. Ev., § 2; Thayer v. Boyle, 30 Maine, 483.
   The opinion of the Court was drawn up by

Tenney, C. J.

This action is against the defendants as common carriers for hire, on account of their alleged failure to deliver one hundred casks of calcined plaster, in good order, at the place to which they engaged to carry it. It is not denied, that the defendants were common carriers for hire, and generally subject to the responsibilities which the law imposes upon persons so engaged.

In order that the owner of property may recover damages of a common carrier for hire, for loss or injury of goods committed to him to be carried to a given place, it is necessary that he should prove a contract, express or implied, for their carriage; the delivery of the goods to the carrier; and the breach of the contract. 2 Stark. Ev., 330.

An implied promise is usually relied upon, arising from the receipt of the goods for carriage, by the carrier, or by one acting for him, at his office or place of business. Ibid, 330.

The foregoing facts being established, it is incumbent on the carrier to prove performance. And, to support an averment of loss or injury, it is enough to show that the goods have not arrived or have received an injury. Ibid, 335.

• At common law, a common carrier for hire is responsible for all losses, excepting those occasioned by the act of God, or the enemies of the king. By the act of God is meant inevitable accident, and is distinguished from an accident, which arises from some act of man. By king’s enemies are meant public enemies, with whom the nation is at open war. Ibid, 335.

So stringent is the law, touching common, carriers, that it treats them as insurers against all, but the excepted perils, upon that distrust, which an ancient writer has called the sinew of wisdom. Story on Bailments, § 490; Forward v. Pittard, 1 T. R., 27; Riley v. Horn, 5 Bing., 217. The law of.this country is the same as that of England. 2 Kent’s Com., 470.

The agent of the defendants gave to the plaintiffs a bill of lading in the following words and figures: — "Red Beach, Me., May 27, 1857. Received from George R.-Tarbox & Co., one hundred bbls. of calcined plaster, to be delivered in good order to Messrs. S. N. Beals & Co., Portland, by steamer.” (Signed,) " George Hayes.”

The plaster in question was damaged on its arrival in Portland, but whether before or after its delivery to the defendants, was a question in the case, and evidence was offered thereupon, by one side and the other.

It was contended on the part of the defendants, that the burden of proof was on the plaintiffs, to show that the plaster was damaged, while in the possession of the defendants. That, as common carriers, the phrase "good order” in the receipt given by the defendants’ agent, referred to the external appearance of the packages, and was not even prima facie evidence in relation to the quality of the contents; and that the plaintiffs, in order to recover, must show affirmatively that the injury occurred through want of diligence or neglect of the defendants; and the defendants also requested the Court to instruct the jury that, unless they were satisfied by the evidence that the injury occurred while the plaster was in the possession of the defendants or their agents, the verdict should be for the defendants.

The Court did not so instruct the jury, but instructed them, that the burden of proof was on the plaintiffs, and that the receipt or bill of lading, signed by George Hayes, dated May 27, 1857, was prima facie evidence that the plaster was in good condition when received by the defendants, but that it was not conclusive ; that it was competent for the defendants to prove that the plaster was damaged before it came into their possession.

The burden of proof does not shift from the party upon whom it was originally thrown, upon the production of evidence sufficient to make out a prima facie case, unless the other party defends under a new and distinct proposition, having no connection with the first, attempted to be sustained by the other side. If the result of the case depends upon the establishment of the proposition, on whom the burden was first cast, the burden remains with him throughout, though the weight of evidence may be one side or the other, according as each may from time to time have introduced fresh proof. State v. Flye, 26 Maine, 312.

If, after the plaintiffs had offered the bill of lading, and the defendants had introduced evidence to show that the plaster was damaged before it was received by them, but failed to establish to the satisfaction of the jury that fact, but still such was the evidence in the case that the jury were not satisfied that the plaster was in good order when the defendants received it, the jury were required by the instruction, touching the burden of proof, to find for the defendants.

This was more favorable to the defendants than the law in decided cases. In the case of Hastings v. Pepper, 11 Pick., 41, it is said, that "the signing of a bill of lading, acknowledging to have received the goods in question in good order and well conditioned,” is prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order, but it does not preclude the carrier from showing, in case of loss or damage, that the loss produced from some cause, which existed, but was not apparent, when he received the goods, and which, if shown satisfactorily, will discharge the carrier from liability. But in case of such loss or damage, the presumption of law is, that it was occasioned by the act or default of the carrier, and, of course, the burden of proof is upon him, to show that it arose from a cause existing before his receipt of the goods for carriage, and for whicli he is not responsible.

It was contended, for the defendants, that the phrase "good order,” in the receipt, referred to external appearances of the packages alone. No case has been cited where this distinction between this phrase and "well conditioned” has been recognized, but they have been treated as substantially the same. In the quotation, whioh we have just made from the opinion in Hastings v. Pepper, both phrases were used in the receipt, and it was regarded as prima facie evidence, that, as to all circumstances which were open to inspection and visible, the goods were iii "good order,” and to show that they were not in "good order,” the burden was on the carrier.

If we consider the precise meaning of the two phrases, independent of their respective relations to the subject matter in question, we cannot regard the phrase "well conditioned,” as having reference to the contents of the casks, more than the plirase "good order.”

The last clause of the defendants’ proposition, the first of which we have just considered, that in order to recover, the plaintiff must show that the loss was by want of diligence or neglect of the defendants, is placing the liability of a common carrier in the same category of an ordinary bailee. This is entirely inconsistent with the principles applicable to the former, and cannot be admitted.

Exceptions overruled, judgment on the verdict.

Appleton, Cutting, Goodenow, Davis and Kent, JJ., concurred.  