EVIDENCE. 513 



tion itself would seem to be confined to cases where the injury 

 has apparently resulted from some intrinsic propensity or de- 

 fect. Otherwise there is no reason why the ordinary rule as 

 to inanimate property should not apply here also. 



The shipper having proved the damage and having over- 

 come the apparent presumption of intrinsic defect, the burden 

 of proof is then on the carrier to show that the damage falls 

 within one of the exceptions to his general liability either at 

 the conimon law or by the provisions of the special contract 

 restricting that liability in various ways.^^* Whether the 

 carrier, having shown this, is obliged also to show that the 

 injury was not due in any way to his own negligence or 

 whether the proof of the fact that the loss falls within the 

 excepted perils shifts to the shipper the burden of proving the 

 carrier's negligence, is a much disputed question. The 

 opinion that seems more rational on general principles is that 

 the burden of disproving his own negligence rests with the 

 carrier as having almost exclusively the means of knowl- 

 edge.^^^ A natural exception to this rule would be where 

 the shipper accompanies the animals and takes charge of them 

 at his own risk. Accordingly, it was held in Indiana that 

 in such a case he cannot recover for a failure to carry safely 

 without alleging and showing that the loss was not due to a 

 breach of his own stipulations, but was caused by the carrier's 

 breach of duty. "The animals were not ... in the ex- 

 clusive custody and control of the carrier, so that the case 

 is not within the reason of the rule that the carrier, and not 

 the shipper, has the burden of proof, because the former has 



™ Hutchinson Carriers § 765; Wallingford v. Columbia & G. R. Co., 26 

 S. C. 258. 



"= This rule is said in Hutchinson Carriers § 766 to prevail in Alabama, 

 Georgia, Mississippi, Ohio, South Carolina, Texas and West Virginia, 

 and to be approved of in Minnesota and Nebraska, "and certainly seems 

 to be the better rule and in accord with reason and pubUc policy." 



See, also, 2 Greenleaf Evidence § 219; Boehl v. Chic, M. & St. P. R. 

 Co., 44 Minn. 191; Western R. Co. of Ala. v. Harwell, 91 Ala. 34°; Mit- 

 chell V. Carolina Cent. R. Co. (N. C), 32 S. E. Rep. 671, and cases cited. 

 33 



