tion of importance to determine what degree of diligence, skill and capacity he is required to apply in such cases, in order to save the goods from loss or further damage. This question has been repeatedly passed upon by the courts, and it may be considered as the settled law that all that can be required of him in such an emergency is the exercise of a reasonable amount of skill and diligence, and that he shall do all that is reasonably and practically possible to insure the safety of the goods. The very question was brought before the court in the case of Nashville, etc. R. R. v. David.37 In the lower court the jury had been instructed that the law required of the carrier, in such a predicament, to use all the diligence which human sagacity could suggest in protecting the property. But the supreme court ruled that this was erroneous, and held the law to be that, in case of such accident or emergency, the carrier is bound to use such means as would suggest themselves to and be within the knowledge of well-informed and competent business men in such positions, and such diligence as prudent, skillful men engaged in that kind of business might fairly be expected to use under like circumstances, which should be actively used to protect and secure the property confided to their care. "It would be impossible," say the court, "for all the roads of the country to command employees possessing the highest human sagacity, nor does the law make any such stringent and unreasonable demand upon them in order to shield them from liability in a case like the present." The duty of the carrier in such cases was stated in very nearly the same language in Morrison v. Davis,38 which was approved by the supreme court of the United States in The Railroad v. Reeves,39 as expressing the true rule upon the subject.

37. 6 Heisk. 261.

38. 20 Penn. St. 171. § 631.

structed by an unprecedented See post, snowstorm and many of the hogs perished. The question was as to the degree of care which the carrier was bound to exercise to get the hogs out of the cars and into a place of safety. Said the court:

39. 10 Wall. 176. See, also, Grier v. The Railway, 108 Mo. App. 565, 84 S. W. Rep. 158.

In Black v. Railroad Co., 30 Neb. 197, 46 N. W. Rep. 428, a train loaded with hogs became ob

"The rule seems to be that a

Sec. 310. Same subject.-So where the carrier permitted a quantity of wheat to remain in a car for several days after water in a nearby river had risen and partially submerged the car, and a portion of the wheat which had not previously been wet was thereby damaged, it was said not to be error to submit the question to the jury to determine from their practical knowledge whether by the exercise of ordinary diligence and care some of the wheat might not have been removed and saved from total destruction, and whether a man of ordinary prudence carrier of live stock is an insurer common carrier as against an act of the safety of the property while of God, say: 'By these instrucit is in his custody, subject to tions the difference between the certain well-defined exceptions. responsibility of the carrier as He is not liable for injuries re- against the act of God and as sulting unavoidably from the na- against these perils which the ture and propensities of the prop- carrier is answerable for is igerty, nor for damages resulting nored. The carrier is held by the from the act of God or the public instructions to the highest deenemy. The evidence brings this gree of foresight and care as case within the exception to the against an act of God; but the general rule. An unprecedented law imposes on him no such liasnowstorm, of such violence as bility. It has been truly said to obstruct the moving of trains, there is hardly an act of God, falls within the term 'act of God.' in a legal sense, which an exhausBallentine v. Railroad Co., 40 Mo. tive circumspection might not an491; Pruitt v. Railroad Co., 62 ticipate, and supposable diligence Mo. 527. While carriers are not not avert the consequence of; so insurers against loss occasioned that the doctrine would end in by the act of God, they cannot, making the carrier responsible on the happening of such an for acts of God, when, by law, the event, abandon the property. passenger and not the carrier as What degree of care and diligence sumed the risk. It has been said at such a time is required in car- that to make the rule a working ing for and protecting the prop- rule, and give to the carrier the erty from injury and loss? The practical benefit of the exemption plaintiffs insist that the carrier which the law allows him, he is required to bestow the highest must be held, in preventing or degree of care, and, if he fails to averting the effect of the act of exercise all possible diligence, God, only to such foresight and and injury occurs by reason care as an ordinarily prudent perthereof, he is liable. In Gillespie son or company, in the same busiv. Railway Co., 6 Mo. App. 554, ness would use under all the cir the court, in considering the de- cumstances of the case.' We gree of diligence required of a have carefully examined the nu

might not with reasonable effort have saved a large part of the wheat.1

Sec. 311. (§ 202.) Same subject.-And in Nugent v. Smith,2 which was the case of a ship at sea caught in a storm, and the

question being as to the degree of care which was required of the carrier in respect to the goods in his charge to protect him from a loss arising from the act of God, it was said by Cockburn, C. J., that "if he uses all the known means to which prudent and experienced carriers ordinarily have recourse, he does all that can be reasonably required of him; and if under such circumstances he is overpowered by the storm or other natural agency, he is within the rule which gives immunity from such vis major as the act of God." And in the case of The Generous, it was said that the carrier would be protected, if, being in peril, he used all practicable endeavors to surmount the difficulties which on fair trial he found insurmountable-not all the endeavors which the wit of man, as it exists in actual understanding, might suggest, but such as might reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. But in The Propeller Niagara v. Cordes,1 it was held by Clifford, J., in delivering the opinion of the court, that in such cases it was the duty of the master of the vessel "to take all possible care of the goods," and that "he was responsible for every loss or injury which might have been prevented by human foresight, skill and prudence;" and such was the opinion of Story, J., in King v. Shepherd. But according to the more recent cases which have been cited, this was stating the rule rather too strongly. And in this case, as in others, the carrier's liability is to be determined in the light of the circumstances as they appeared to him at the time, and not in the clearer light that often presents itself when the emergency has passed away and events are seen in different relations."

Sec. 312. (202a.) Burden of proof as to carrier's contributory negligence.-Where the claim is made that, notwithstanding the intervention of an act of God, the loss would not

3. 2 Dodson, 324.

4. 21 How. 7.

5. 3 Story, 358.

6. Smith v.. Railway Co., 91 Ala. 455, 8 So. Rep. 754, 24 Am. St. Rep. 929, 11 L. R. A. 619;

Railroad Co. v. Kellogg, 94 U. S. 475; Blythe v. Railway Co., 15 Colo. 333. See, also, Long . Railroad Co., 147 Pa. St. 343, 23 Atl. Rep. 459, 30 Am. St. Rep. 732, 14 L. R. A. 741.

have happened but for the negligence of the carrier, as in unreasonably delaying or exposing the goods, the burden of proving such negligence is, according to the weight of authority, upon him who affirms it.7

Sec. 313. (§ 202b.) Act of God will not excuse if carrier has wrongfully refused to deliver goods.-The act of God which would otherwise excuse will not relieve the carrier where the goods are destroyed after he has wrongfully refused to deliver them to the consignee upon presentation of the bill of lading.8

III. CARRIER NOT LIABLE FOR LOSSES ARISING FROM ACTS OF THE PUBLIC ENEMY.

Sec. 314. (§ 203.) Exception of losses arising from the acts of the public enemy. The only other exception early made by the law in favor of the carrier is of losses arising from capture by the public enemy, or, as it is generally expressed, by the king's enemies; and by the word enemies in this connection is to be understood the public enemies of the country of the carrier and not of the owner of the goods. So that if the goods be intrusted to a foreign carrier whose country is at war with another and he is captured by the latter, it is a loss by the public enemy which will excuse him.9

Sec. 315. (204.) Reason for this exception. This exception is said to have been made in the carrier's favor because of the exceeding hardship which it would have imposed upon him to compel him to pay for losses when he could have no recourse or remedy over against those who had brought the loss upon him; and, therefore, it is said that the enemy must be the king's enemy or the public enemy, and not those merely who engage in mobs, riots, insurrections and the like; for against them he might have his remedy by proceeding against the hundred. But

7. See post, § 1354 et seq.

9. Russell. Neiman, 17 Com.

8. Richmond, etc., R. Co. V. B. (N. S.) 163. Benson, 86 Ga. 203, 12 S. E. Rep.