Page:Federal Reporter, 1st Series, Volume 9.djvu/827

 812 FEDERAL REPORTER. �At the tria], it appeared from the evidence that the losses all occuired frorn fire, through the defendant's negligence in attempting to eonvey tiie cotton on open flat cars through woods which were on flre. �In the case referred to as the one in which the negligence was least culpable the conductor did net see the flre until very close to it, and there being no side track, went ahead. In the other cases the smoke arising from the fire could be seen at a distance, and the cars on which the cotton was loaded might have been lef t in safety upon a side track. The cotton wonld probably have been delivered to its owners, if it had not been destroyed, on or about January 10, 1877. �The amounts referred to in the opinion of the court are the sums which the different shipments of cotton were proved to have been worth at the time of the loss. �The allegations of the answers in reference to the provisions in the bills of lading as to the llability of the carrier by flre were proved. �Robert Harbison, for plaintiff. �Porter d Pike, for defendant. �Tkeat, D. J. These cases were heard at the same time and rest mainly on the same general principles. Some of the evidence intro- duced was incompetent, it being merely hearsay, as contradistin- guished from "verbal facts." Discarding all sueh, the main question decisive of the cases is as to the defendant's negligence. Although the shipment of cotton on open or flat cars may not be in itself sueh an act of negligence as would make the carrier liable under all con- tingencies, yet when sueh shipment is made, there is devolved upon the carrier the duty to take the additional precautions needed for the protection and safety of the cotton. In these cases it seems that not only was no sueh precaution taken, but that the train in two of the cases was hurried forward when fires were adjacent to the track, or suificiently near to render it more than probable that so inflammable an article would be ignited and destroyed. In the other case the negligence, although not so gross, was extremely culpable. �As it is admitted that if the loss was caused by the defendant's neg- ligence the plaintiff must recover, it is unnecessary to consider what effect, if any, the Texas statutes wonld have upon the exemptions in the bill of lading against loss by fire, so far as the defendant is con- cerned, Eev. St. Texas, 1879, p. 48. �Judgments for the plaintiff will be enforced for the respective amounts, with interest at the rate of 6 per cent, per year from Jan- uary 10, 1877, with Costa. ��� �