Thomas v. . R. R.

COOK, J., dissenting. The "facts agreed" are defective in that the essential element of negligence upon which the validity of the contract depends is not determined and stated. The law is well settled and thus summed up in 2 Fetter on Carriers of Passengers, sec. 580: "A common carrier of passengers is an insurer of the passenger's baggage against all loss or damage, except for that caused by the act of God or by the public enemy." Section 627: "A common carrier of a passenger's baggage may, by express contract, relieve himself from his common law liability as insurer; but by the weight of authority he cannot exempt himself from liability for negligence of himself or his servants.

In Capehart v. R. R., 81 N.C. at p. 444; 31 Am. Rep., 505, Ashe, J., citing Smith v. R. R., 64 N.C. 235, and Glenn v. R. R., 63 N.C. 510, and other authorities, says that the common carrier cannot stipulate against any loss caused by negligence. To same purport, Wood v. R. R., 118 N.C. at p. 1063; Brown v. Tel. Co., 111 N.C. at p. 191; 32 Am. St., 793; 17 L.R.A., 648; citing from Cooley on Torts, 687, says: "The old principle that one cannot provide by contract against liability for negligence applies to every species and degree of negligence or tort."

The facts here agreed admit the destruction of the trunk "by fire in a wreck of the train caused by a slide of dirt and rocks upon the track." There is a presumption of negligence from the fact that the train was derailed by running (592) into a pile of dirt and rocks upon the track. 2 Fetter,supra, sec. 482. Res ipsa loquitur. This presumption is not rebutted in the facts agreed. It is not agreed that there was no negligence, and the plaintiff contends that the defendant admits negligence by submitting the case upon the validity of the contract on that state of facts. The validity of such contract, as applied to the facts of any case, depends upon whether there was negligence on the part of the defendant, and upon the facts agreed, if there were not a presumption of negligence, there is certainly no presumption to the contrary, and the case should go back that this may be ascertained by a jury, if not agreed upon by the parties.

Error.