If

REAL PROPERTY LIABILITY FOR INJURIES TO ADJACENT LANDS. the defendant used due diligence in firing his land, and on account of inevitable accident the fire escaped and burned plaintiff's rails, defendant will not be liable: Miller v. Martin, 16 Mo. 508; 57 Am. Dec. 242, and note. A land-owner firing a prairie must use reasonable precautions to prevent injury to others, and will be liable for a failure so to do: Johnson v. Barber, 5 Gilm. 425; 50 Am. Dec. 416; Webb v. Rome etc. R. R. Co., 49 N. Y. 420; 10 Am. Rep. 389, and note. Liability for firing adjacent lands generally: Note to McNally v. Colwell, 30 Am. St. Rep. 501-507. For discussion of the question of liability for damage done to others from acts committed on one's own land, see note to St. Peter v. Denison, 17 Am. Rep. 263; also extended notes to Hay v. Cohoes Co., 51 Am. Dec. 283, and Radcliff v. Mayor, 53 Am. Dec. 366. The owner of land making excavations thereon is liable for damage to the adjacent owner, if such damage could have been avoided by the exercise of reasonable care: Charless v. Rankin, 22 Mo. 566; 66 Am. Dec. 642, and note. The rightful use of one's land may cause damage to another without any legal wrong: Haldeman v. Bruckhart, 45 Pa. St. 514; 84 Am. Dec. 511. A party, in the exercise of a right on his land, which involves danger to his neighbor, is bound to provide against such by all reasonable prudence and care: Hummell v. Seventh St. Terrace Co., 20 Or. 401. See also the case of McNally v. Colwell, 91 Mich. 527; 30 Am. St. Rep. 494, and extended note.

DUNBAR V. PORT ROYAL AND AUGUSTA R'Y CO.

[86 SOUTH CAROLINA, 110.]

COMPLAINT IN ACTION ON SPECIAL COntract need NOT ALLEGE Defend ANT TO BE COMMON CARRIER. In an action brought by a shipper of perishable property against a railroad company to recover damages for its failure to forward the property, where the complaint alleges that the defendant contracted with the plaintiff to ship, transport, and carry such property to its destination, it is not necessary that it should allege that the defendant was a common carrier. VARIANCE-CONTRACT INVOLVING DIFFERENT RESPONSIBILITIES NOT ADMISSIBLE IN EVIDENCE WHEN. - Where the contract set out in a com. plaint is a contract to ship, transport, and carry the plaintiff's goods to a certain point, a bill of lading containing a contract to merely forward them to that point, and stipulations that the defendant would not assume any liability beyond its own rails, and would not be responsible for delays or damages from unavoidable causes, is not admissible in evi. dence, since these are distinct and different contracts, involving different responsibilities.

CONNECTING CARRIERS- EXTENT OF THEIR LIABILITY UNDER CONTRACT TO FORWARD GOODS. — Where a railroad company contracts to forward, not to transport, goods to a point beyond its own line, expressly stipu lating that it assumes no liability beyond its own rails, it cannot be held liable in damages for any loss of or injury to such goods, occurring be. yond its own line.

ACTION to recover damages. The facts are stated in the opinion.

Elliott and Townsend, for the appellant.

Robert Aldrich, contra.

McIVER, C. J. The plaintiff brings this action to recover damages for the loss of a car-load of watermelons shipped by plaintiff on defendant's road under a contract, as he alleges, to deliver the same to a designated consignee in the city of New York. In the complaint the allegations necessary to be noticed are substantially as follows: That on the 17th of July, 1889, the plaintiff delivered to defendant, at one of its stations, a car-load of watermelons, consigned to J. A. Judge, in the city of New York; that defendant received said goods, "and agreed to ship, transport, and carry the same" for the freight price of $103.20, to be paid at the point of destination, according to the custom of defendant company at that time and prior thereto; that defendant transported said melons to a station on its road called Yemassee, en route for New York, refusing to carry them farther unless the freight was paid in advance; that plaintiff received no notice of such refusal until he knew, from the perishable nature of the goods, they must be damaged to such an extent as to render them valueless, and after plaintiff refused to pay the freight as demanded, defendant carried said goods to their destination, but on reaching there they were, by reason of the delay in transportation, damaged to such an extent as to prove a total loss to the plaintiff.

The case came on for trial before his honor Judge Aldrich, and after the complaint was read, and before reading the answer, which will be hereinafter referred to, the counsel for defendant interposed an oral demurrer, upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, which being overruled, the trial of the cause proceeded.

In the answer, defendant denies the material allegations of the complaint, especially that defendant had agreed " to ship, transport, and carry" said melons to New York, and say that the melons were carried by defendant to Yemassee, and there defendant offered and attempted to deliver them without delay to the Charleston and Savannah Railway Company, whose road connects with defendant's at that point, and is a usual connecting line with defendant's road en route to New York, a place beyond the terminus of defendant's road, but that said Charleston and Savannah Railway Company refused to receive said goods unless the freight was prepaid; that de

fendant used due diligence in notifying the plaintiff of such refusal, and requested the plaintiff to pay the freight or direct what disposition should be made of the melons, which plaintiff declined to do; that thereafter said Charleston and Savannah Railway Company received said goods from defendant to be forwarded over their road to New York.

In the course of the testimony, plaintiff offered in evidence the bill of lading given by defendant to plaintiff when the melons were shipped, which was objected to upon the ground that such paper set forth a contract different from that set out in the complaint; the difference being in the initials of the agent of the defendant company, which is not insisted upon here, and in the fact that in the contract, as alleged in the complaint, the defendant agreed "to ship, transport, and carry," while that stated in the bill of lading was that the defendant received the goods "to be forwarded in accordance with the provisions, stipulations, and exceptions of the general rules and regulations and freight tariffs of the company." The bill of lading also contains the following stipulations: "This company assumes no liability beyond its own rails. .... This company will not be responsible for delays or damages from unavoidable causes, nor guarantee any special dispatch in the transportation of any article." The objection to the introduction of the bill of lading was overruled (to which defendant excepted), and it was received in evidence, and a copy thereof appears in the case.

Under the charge of the judge, the jury found a verdict in favor of plaintiff, and defendant appeals upon the several grounds set out in the record. These grounds allege error, on the part of the circuit judge, in the following particulars, substantially: 1. In overruling the demurrer; 2. In overruling defendant's objection to the introduction of the bill of lading; 3. In the construction of the contract evidenced by the bill of lading.

As to the first, we do not think there was any error. If, as was alleged in the complaint, the defendant contracted with the plaintiff "to ship, transport, and carry" his melons to New York, and either failed entirely to perform the contract, or failed to perform it with that reasonable and prompt dispatch that would be implied from the perishable nature of the goods, then unquestionably the defendant would be liable for such breach of its contract. As the complaint, reasonably construed, does, in our opinion, state such a con

tract, and its breach by defendant, we think it does state facts, which, if true, would give the plaintiff a cause of action. The absence of an allegation that defendant was a common carrier, upon which this ground of appeal seems to be mainly rested, cannot affect the question. The defendant is not sued as a common carrier, but the action is based upon a special contract, which any person, natural or artificial, may make, whether he be a common carrier or not.

The second ground is, we think, well taken. The contract, as set out in the complaint, is a contract "to ship, transport, and carry" the goods to New York, whereas the contract evidenced by the bill of lading offered in evidence was a contract to forward the goods to New York, with a special stipulation that the defendant company "assumes no liability beyond its own rails," and "will not be responsible for delays or damages from unavoidable causes." These are distinct and different contracts, involving different responsibilities, as will be seen from the cases which will hereinafter be cited. It seems to us, therefore, that it was error to allow the plaintiff to offer in evidence a contract different from that set out in the complaint. But as this objection might possibly be obviated by amendment, under the case of South Carolina R. R. Co. v. Barrett, 12 S. C. 173 (which, however, the writer must say has never commanded the approval of his judgment, though it does command his assent as an authoritative decision of the court of last resort), it is necessary to proceed to the consideration of the last and controlling question in the case, viz., whether the judge erred in his construction of the contract evidenced by the bill of lading.

In Insurance Co. v. Railroad Co., 104 U. S. 157, Mr. Justice Harlan says the rule as sanctioned by that tribunal, and adopted in most of the courts of this country, is, "that the carrier, in the absence of a special contract, express or implied, for the safe transportation of goods to their known des tination, is only bound to carry safely to the end of its line, and there deliver to the next carrier in the route." The same rule was recognized in the case of Railroad Co. v. Pratt, 22 Wall. 123, and in that case the distinction between a contract "to transport" and a contract "to forward" is plainly and distinctly recognized. As said by Mr. Justice Hunt in that case: "Transported or carried are equivalent terms, and quite distinct from the idea of forwarding "; and as the word transported" was used in the bill of lading in that case, it

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was held that the contract bound the carrier to transport or carry beyond its own lines.

In Crawford v. Southern R. R. Ass'n, 51 Miss. 222, 24 Am. Rep. 626, it was held that a railroad company, by simply receiving freight marked for delivery at a point beyond its own lines, does not thereby contract to transport and deliver at the point of destination, and is only bound to seasonably deliver the freight to its connecting line on the usual route to the point of destination. In that case, the terms of the bill of lading were, so far as the question we are considering, practically identical with the terms of the bill of lading in this case, for it acknowledged receipt of the goods, "to be forwarded to Birmingham, Alabama," a point with which defendant's line did not connect, except by intervening lines of other companies. To the same effect, see Grindle v. Eastern Exp. Co., 67 Me. 317; 24 Am. Rep. 31; Knight v. Providence etc. R. R. Co., 13 R. I. 572; 43 Am. Rep. 46; Burroughs v. Norwich etc. R. R. Co., 100 Mass. 26; 1 Am. Rep. 78; and also American Exp. Co. v. Second Nat. Bank, 69 Pa. St. 394; 8 Am. Rep. 268. In that case, Sharswood, J., points out the distinction between a contract to carry and a contract to forward. The same doctrine is, it seems to us, justly deducible from the decision of this court in the case of Piedmont Mfg. Co. v. Columbia etc. R. R. Co., 19 S. C. 353, though the case is not exactly in point; for there it is laid down that the obligation on the part of a carrier to transport goods beyond its own line arises only from the contract of the parties, and that even the payment of the through-freight to a point beyond its own terminus does not make it a common carrier over other roads to the point of destination. See also Felder v. Columbia etc. R. R. Co., 21 S. C. 35; 53 Am. Rep. 656.

Now, in this case, the contract on the part of the defendant being to forward, and not to transport, accompanied with the express stipulation that defendant "assumes no liability beyond its own rails," we think the circuit judge erred in construing the bill of lading as a contract to carry the goods to New York. This case is very different from that of Kyle v. Laurens R. R. Co., 10 Rich. 382, 70 Am. Dec. 231, for there the contract stated in express terms that the cotton was to be delivered in Charleston. The fact that the contract in this case provided for the payment of the entire freight in New York could not affect the question of defendant's liability, unless it had appeared that defendant had refused or delayed