
    No. 8060.
    COURT OF APPEAL. Parish of Orleans.
    J. P. HUDSON SONS COMPANY, Plaintiff and Appellee, versus MORGAN’S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY, Defendant and Appellant.
    By Dinkslspiel; J.
   By Dinkelspiel; J'

Plaintiff brings this action February 34th, 1916, against the defendant Company, alleging that on January 4th, 1915, plaintiff shipped from national Stock Yards at East St. Louie, Illinois, to Itself at Thibodeaux, Louisiana, twenty two mules which moved from point of origin to Hew Orleans via the Louisville & Nashville Railroad Company and thenoe to destination over defends ant's line, alleging further that the mules were all delivered to -the defendant at New Orleans in good condition, but that on arrival at Thibodeaux, one of the mules, worth Two Hundred Twenty Seven and 41/100 Dollars was dead "due to the rough handling of the oar by defendant company or ire employees.11 Wherefore they prayed for judgémtn against defendant for Two Hundred Twenty Seven and 4l/l00 Dollars, with legal interest from January 13th, 1915, until paid.

The answer of defendant admits the shipment of mules and that one of them was dead on arrival at Thib-odeaux; further admits that the mules were in apparent good condition when received by defendant at Hew Orleans, but does not know their real condition after their long journey from East St. Louis; denies that the death of the mule was due to rough handling by defendant or its alleges employees and/ttetafrat the conditions of the bill of lading attached to plaintiff's petition, the feature of which was that the shipper released the carriers from liability for damages from certain enumerated causes and from every other cause which did not result from the negligence, of the agents or servants of the company and if there was damage it was limited to the sum of One Hundred Dollars¡further alleges that the death of the mule occurred at Schrever, Louisiana, during the night of January 8th to 9th, while the car was stationary.

There were a number of witnesses examined-

Bourgeois, who is the defendant'3 Agent at Thib-odeaux, testified that the oar was in perfect condition and the other twenty one mules in like good condition.

Drexler, the veterinarian, testified as to the position and appearance of the dead mule and stated that it had died of a broken neok.

Alonzo, another witness, testified that he was the freight conductor who handled the car to Schriever from Hew Orleans and there was no rough handling, the car was set out at Schriever shortly before n.iinirht, January 8th, 1915; apparently the mules were in good condition; he' looked with the aid of a hand lamp through the boards in the side of the car rnd saw nothing wrong.

Tucker, hight clerk at Schriever, testified that, the car was sent out at eleven fifty five P. R. January Sth, he checked the seals and noticed nothing wrong with the mules.

Daigle, the day clerk at Schriever, testified that he lt§s& went on duty the following morning at six thirty A. M. and he found a deed mule in the center of the oar which apparently had been dead for sometime.

An examination of this testimony fails to convince us that the defendant company has carried out its contract with the plaintiff. The reference to the last case quoted by defendant Company, in its brief, HcHenry Horse Exhhange Co. vs. Illinois Central E, E. Co. et al, does not in our opinion come within the purview of this particular case for the reeSGn the.t there the railroad company was sued for a mare which was lost or wrongly carried in transit and never had been delivered to petitioner notwithstanding amicable demand. In that case it was shown to the satisfaction of the Court that the railroad company diligently guarded the car in which this mare was being shipped; they had a proper car for the transportation of horses; the horses were unloaded at Jackson, Mississippi, fed and watered and found to be in good condition. Three hours later the train stoppec at Crystal Springs, Mississippi, the horses were again examined and all viere standing; when the tr^in stopped at McCom’o, a station fifty three miles from Crystal Springs on the same day, tho oar containing the hourees was again examined and one was found dee.d; the remaining twenty one in the car were all standing and apparently in a sound and healthy condition and uninjured; the oar which carried t}ie horses from Jackson to Crystal Springs and from Crystal Springs to McComb received no rough handling and was in no accident, hence the SEmgany Court goes on in its opinion to say "there was no evidence showing negligence on the part of the defendant".

The Civil Code, Art. 3574 provides that "Carriers are liable for loss or damage for things entrusted to their care unless they can prove that such loss or damage has been occassioned by accident and uncontrollable events".

"The carrier must prove the precise cause of loss. It will not suffice to prove merely due diligence but the carrier must prove more than the accident was occassioned by fortutious event or by any irresistable force or by a defect'of the thing itself or by the fault of the shipper". 115 Ls. page 1.

In the National Rice Milling Co. vs. the N. O. & N. E., 132 La. 615, "According to law and jurisprudence of this State, to be relieved from liability the carrier must prove that the loss or damage has been occassioned by accident or uncontrollable event and thi3 involved the proposition that the carrier must prove that it was free from fault".

Truxilo vs, T. & P. R. R. Co. and L. & N. R. R. Co., 7 Court of Appeals, page 18.

"Presumptions of fact,''.vixen justified, are entitled to as much weight as any species of evidence. Facts established by fair presumptions are as well proved as if testified to by witnesses."

"Even where the shipper assumes all ri3ks, but the negligence of the oarrier, the burden of proof is- ■ still on she carrier to show that the damages occurred through no negligence of his."

Vie are therefore of opinion that the evidence 103 3 accounts satisfactorily for the/j5S»SX3S sustained by plaintiff in this case and that for' these damages the defendant is liable.

For the reasons assigned, it i3 ordered, adjudged and decreed, that the judgment of the Court xquo be and the same is hereby affirmed, the costs of both Courts to be paid by appellant.

-Judgment affirmed-  