Common carriers cannot exempt themselves by express contract from liability for loss or damage attributable to their own negligence. A consignor is entitled to recover of common carriers for merchandise destroyed by fire which started without their fault, but which they negligently failed to extinguish. In an action against common carriers to recover for merchandise destroyed by fire, evidence of inadequate public protection is competent upon the question of the defendants' negligence in failing to employ watchmen and maintain fire apparatus.
YOUNG, J.
The defendants' first exception must be overruled because there is evidence from which it can be found that the defendants' negligence was the legal cause of the plaintiffs' loss, and they cannot relieve themselves from the consequences of their wrongful acts by special contract, either in this state or in Massachusetts. Durgin v. Company, 66 N.H. 277; Cox v. Railroad, 170 Mass. 129, 136, 137; School District v. Railroad, 102 Mass. 552. It could be found that if the defendants had used ordinary care in respect to employing watchmen and providing apparatus for extinguishing fires, this one would have been confined to the transfer station. In that case, notwithstanding the fire started without the defendants' fault, their negligence in respect to extinguishing it would be the legal cause, and the fire itself only the occasion, of the plaintiffs' loss.
The evidence in respect to the facilities provided by the city for extinguishing fires was properly admitted, for the precautions that ordinary men would take to protect the property in this yard from fire would depend in some degree, at least, upon the protection furnished by the city. The exception to the amount of the damages in the second case, not having been argued, has not been considered.
Exceptions overruled.
All concurred.