134 DAMNUM FAT ALE. 



107. Legal Presumption in Case of Loss or Injury. — 



When loss or damage occurs in transit, there arises a pre- 

 sumption that it occurred at the carrier's hands ; and the 

 burden of proving that it did not is laid upon him ;(«) and 

 a common carrier, if not protected by express contract, is 

 responsible for all loss and damage to a horse entrusted to 

 him for carriage, unless he can establish that the loss was 

 due to inevitable accident, (6) or solely to some inherent vice 

 in the horse carried.(c) Thus, a common carrier by sea 

 received a mare for transit from London to Aberdeen. There 

 was a rough passage, and the mare received such injuries 

 that she died. The jury found that the injury was due 

 partly to more than ordinary bad weather and partly to the 

 fright of the mare, and that there was no negligence on the 

 part of the carrier or his servants.((?) It is not necessary 

 for the carrier to prove that it was absolutely impossible to 

 prevent it, but it is sufficient to have proof that by no 

 reasonable precaution under the circumstances could it have 

 been prevented, (e) 



108. Damnum fatale — The inevitable accident(/) which 

 will free a common carrier from liability for loss must be due 

 exclusively to natural causes without human inteiwention. 

 Thus, neither theft(^) nor the fraud of servants are any 

 excuse :(Ji) but, in order to show that the cause of the loss 

 was irresistible, it is not necessar}" to prove that it was abso- 

 lutely impossible to prevent it ; it is sufficient to prove that 

 by no reasonable precaution under the circumstances could 



(a) § 93 ; for form of issue see Wond cO Co. v. Pcellcs Ry. Co., 1860, 22 D. 1393 ; 

 Hudson V. Baxcndale, IS;")?, 2 H. and N. 57."). 



(i) Ersk. iii. 1, 28 ; Stair, i. 13, 3 ; B.C. i. 495 ; § 108. 



(c) § 109. Paxton and liahton, cit. p. 128. 



(rf) Niirjent V. Smith, 1875, L.R. 1 C.P.D. 423. 



(c) Per L.J. Mellish in Nwjcnt, cit. p. 441. 



(/) See .also §§ 93, 160. 



(g) Forbes v. Steel, 1687, M. 9233 ; Chisholm v. Fenton, 1714, M. 9241. 



(h) Stair, i. 13, 3. but the goods must be given regularly .'<> .is to charge the 

 master. See § 96. 



