20 Minn. 125 (Gil. 110), 9 Am. Neg. Cas. 489n, 18 Am. Rep. 360; Yazoo, etc., R. Co. v. Grant, 4 Am. & Eng. Ann. Cas. 556, [86 Miss. 565]. See notes to latter case as to a contrary doctrine. In Coward v. East Tenn., etc., R. Co., 16 Lea (Tenn.) 225, 57 Am. Rep. 227, a ticket was purchased at a reduced rate containing the following clause: "None of the companies represented in this ticket. will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding $100"-which provision, with full understanding thereof, the passenger assented to by appending his signature. Based on the ticket a trunk was checked that did not reach its destination until several hours after the passenger's arrival, and it was then discovered that the lock had been filed, and a watch and chain and a diamond pin had been stolen. In an action to recover the value of the property taken, it was held that the jewelry was the customary wearing apparel of a lady occupying the station of the passenger, and that the payment of the reduced rate did not absolve the carrier from liability for its own negligence, which consisted in a failure to transport the trunk on the same train with the passenger; the court saying: "The separation of the passenger and the baggage and their transportation by different trains is nowhere explained." And a judgment was rendered against the carrier for $1,400, as the value of the property stolen. In the case at bar, the defendant undertook to escape liability for the watchmaker's and jeweler's tools, a reasonable quantity of which, when placed in plaintiff's trunk for transportation, constituted a part of his personal baggage. Davis v. Cayuga, etc., R. Co., 10 How. Prac. (N. Y.) 330; Kan. etc., R. Co., v. Morrison, 34 Kan. 502, 9 Pac. 225, 55 Am. Rep. 252; Porter v. Hildebrand, 14 Pa. 129. The defendant was authorized to refuse the transportation of anything but personal effects of a passenger. This was a right, however, which it could waive, and when Wells delivered to its Chicago agent a trunk, and asserted that it contained property not classified as baggage, the issuing of a check with knowledge of the contents rendered the carrier liable for the loss in case the derailing and burning of the car was occasioned by the negligence of its servants. 3 Thomp. Neg. § 3402; Oakes v. N. P. R. Co., 20 Or. 392, 26 Pac. 230, 12 L. R. A. 318, 23 Am. St. Rep. 126; Bergstrom v. Chicago, etc., R. Co., 134 Iowa, 223, 111 N. W. 818, 10 L. R. A. (N. S.) 1119, 13 Am. & Eng. Ann. Cas. 239. As the principles under which the freedom of contract and private dealings is restricted by law for the good of the community demanded that defendant should exercise due care in transporting baggage we conclude that the ticket issued to him at a reduced rate, and the clause attempting to limit liability as to the character and the value of the contents of the trunk, though assented to by him, did not exonerate it from accountability for the loss if it resulted from the negligence of the carrier's agents. The burning of the trunk and its contents in the manner alleged in the complaint having been admitted by the answer, the remaining question to be considered is: Upon whom was cast the burden of proof as to whether or not the loss was caused by the negligence of defendant's servants? Though a limitation by express agreement may relieve a common carrier of liability for loss of or injury to goods intrusted to him for transportation, except for negligence of his servants, the preponderance of authority in America supports the doctrine that in cases of special contract the burden of proving negligence devolves on the shipper. Lawson, Cont. Car. § 248. In the next section this author observes: "In Greenleaf on Evidence it is said: 'And, if the acceptance of the goods was special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care.' 2 Green. Ev. § 219. This rule has the support of a few authorities." As upholding the principle thus announced, attention is called to several decisions, and among them to the case of Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729, in referring to which the text-writer further remarks: "It and the rule as stated by Mr. Greenleaf are certainly founded upon reason and public policy, but they lack, as has been seen, the support of authority." Lawson, Cont. Car. § 250. In case of injury to goods the carriage of which has been undertaken pursuant to an express contract made with the owner limiting liability, we believe that, as the common carrier is not a gratuitous bailee, the burden ought to be imposed on him to disprove negligence, which should be presumed from the failure to ship or deliver. This rule would require the proving of a negative; but, as the agents of the carrier must have a better knowledge of the origin and consequences of the loss than any other person, he should be required to show that the damage did not result from negligence. Any other rule would subject the shipper to much expense in attempting to discover the cause of the injury to or loss of his goods, and since this information can readily be supplied by the carrier he ought to be required to disprove negligence. If the burden devolved on the shipper, he might be compelled to rely on the testimony of servants in the em ploy of the carrier whose hope of continual engagement might affect their sworn statements. For these reasons we think it was incumbent upon the defendant to show that the derailing and burning of the baggage car did not result from negligence. In actions to recover damages based on carelessness, the proximate. cause is any act or omission that immediately produces or fails to prevent the injury, or that which directly puts into operation another agency or force, or interposes an obstacle whereby injury is inflicted that would not have happened except for the original negligent act or omission. 8 A. & E. Enc. L. (2 Ed.) 571; 32 Cyc. 745; Hartvig v. N. P. L. Co., 19 Or. 522, 25 Pac. 358; Ahern v. Or. Tel. Co., 25 Or. 276, 33 Pac. 403, 35 Pac. 549, 22 L. R. A. 635; Robinson v. Taku Fishing Co., 42 Or. 537, 71 Pac. 900. When in such an action the complaint sets forth the facts constituting the negligent act or omission, discloses, in logical sequence, the facts composing the secondary agency, force or obstacle, if any, and details the resultant injury and the damages, the pleading is sufficient. In the case at bar, the complaint does not conform to these requirements, but, as the burden of proof rested on the defendant, a suggestion of negligence in plaintiff's primary pleading was, in our opinion, adequate for that purpose. The defendant, probably relying on the weight of authority respecting the burden. of proof, offered no evidence on the question of negligence. Objection is made because the court did not make a finding as to the special contract alleged in the answer and denied by the reply. The finding that defendant was negligent, in consequence of which plaintiff's trunk and its contents were destroyed, renders void the attempted limitation of liability, which conclusion determined the right of recovery, rendering it unnecessary to make any findings on such issue. Lewis v. First National Bank, 46 Or. 182, 78 Pac. 900; Freeman v. Trummer, 50 Or. 287, 91 Pac. 1077; Naylor v. McColloch, Mayor, 54 Or. 305, 103 Pac. 68. It follows from these considerations that the judgment should be affirmed, and it is so ordered. SCHNATTERER v. BAMBERGER et al. [COURT OF ERRORS AND APPEALS OF NEW JERSEY, MARCH 6, 1911.] 1. Negligence-Condition of Store-Notice of Defect. The defendant kept a department store, in which was a stairway connecting the first floor with the basement, for the use of its customers. The plaintiff testified that in treading on one of the steps in going down the stairway the heel of her shoe caught in a brass nosing (originally attached to the edge of the wooden step to prevent its wear), which was loose, but was not then noticed by her, causing her to trip and fall downstairs, and it was held that, when the plaintiff rested her case, the evidence failed to show the storekeeper had been guilty of any want of reasonable care in keeping the stairway safe for her use, for the reason it had not appeared that the defect which she had said caused her to trip and fall had (a), in fact, been brought to the notice of the storekeeper before the accident; or (b) had existed for such a length of time as to charge the storekeeper with notice thereof. In the absence of proof of one of these conditions, a prima facie case that defendant had been guilty of negligence was not established. 2. Negligence-Condition of Store-Degree of Care. The defendant was not an insurer against accidents, and its duty to the plaintiff was satisfied when it had used reasonable care to maintain its store passages in a condition safe for her proper use. 3. Negligence-Condition of Store-Failure to Inspect. The question of what shall suffice to constitute the reasonable period of time within which the failure of the storekeeper to make proper inspection of his floors and stairways in order to discover and remedy dangerous defects in them before he is chargeable with responsibility for accidents of the present nature is one which in cases where the facts are undisputed, and different inferences cannot reasonably be drawn from the same facts, is for the court, and not for the jury, to determine. [Headnotes by the Court.] Error to the Supreme Court to review a judgment of nonsuit directed in an action brought to recover damages for personal injuries caused by falling down stairs in defendant's department store. firmed. For plaintiff in error-Abner Kalisch, and Samuel Kalisch, Jr. For defendants in error-Edward M. Colie. NOTE. On the subject of Liability for PerBonal Injuries Sustained in Stores and Places of Business, see note in 8 Am DECLARATION, Louis Bamberger, Felix Fuld and Louis M. Frank doing business under the firm name of L. Bamberger & Company, the defendants in this suit, were summoned to answer unto Pauline Schnatterer, the plaintiff therein, of an action in tort, by Abner Kalisch, her attorney, complains: For that whereas, the said defendants heretofore, to wit, on the twenty-fourth day of April, nineteen hundred and nine, at Newark, in the County of Essex and State of New Jersey, was and for a long time prior thereto, had been in possession of a certain store situated on the first floor of the building known and designated as Numbers 135 and 147 Market Street, in the City of Newark, County of Essex and State of New Jersey, and being so possessed of said store, the said defendants were then and there using and oc cupying the same and conducting therein the business of selling dry goods, wares and merchandise, which were then and there in said. store, and the said defendants conducting the said store as aforesaid, then and there invited all persons to enter said store desirous of purchasing any of said goods and chattels. And the plaintiff avers that in the floor of said store, there was a certain hole and opening which opened into a stairway leading to at basement in said building under the store, in which basement goods, wares and merchandise were also sold, and which said stairway was maintained and used by the said defendants as a means of access to their said basement; that the said opening lay level and open with the said floor, so that a person could step from the floor to the stairway leading into the basement as aforesaid. And the plaintiff avers that it became and was the duty of the said defendants to use due and proper care that the said stairway leading from said floor of said building to said basement was in a safe. and proper condition and repair, and to use and maintain said stairway in such a way so that it should not be or become, dangerous to life or limb to those persons lawfully in said store and lawfully using said stairway; but the plaintiff avers that the said defendants, not regarding their duty in that behalf, did not use due and proper care. to see that said stairway leading from said floor to said basement. was in a good, safe, and proper condition and repair, and did not use due and proper care in maintaining and using said stairway in such a manner that it should not be or become dangerous to life or limb, but wholly failed and neglected so to do, and on the contrary, on the day and year last aforesaid, to wit, at Newark, in the County of Essex and State aforesaid, the said defendants did improperly, |