Colton v. Cleveland &Pittsburg Railroad , 67 Pa. 211 ( 1871 )

The opinion of the court was delivered,

by Thompson, C. J.

We think the learned judge below was entirely right in construing the exception in the bill of lading in this case as restrictive of the law of liability of common carriers. It is as follows: “ The dangers incident to railroad transportation, fire, and all other unavoidable accidents excepted.” Without doubt, the exception of loss by “ fire” was a limitation upon the common-law responsibility, and brings the case within the case of Farnham v. The Camden and Amboy Railroad Company, 5 P. F. Smith 55. The learned judge refused to hold, as the plaintiff below insisted upon, that the word “unavoidable” qualified the word “ fire” in the exception. This was right. To have held otherwise would have been to regard the enumeration of the peril as utterly inefficient and useless, as the words, “ other unavoidable accidents,” would cover it. The exception in this bill was of “fire,” whether unavoidable or not, provided it was not by the negligence of the company, which cannot be provided against. The common-law liability, being thus changed, the onus of proof of where the fault lay was changed, as is shown in Farnham v. The Camden and Amboy Railroad Company, supra. The case was well decided below, and as we see no error in the record, the judgment must be affirmed.