416 Opinion of the Court. shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded or damage in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.' If respondent does not bring the case within the terms of the final proviso, its failure to give written notice of claim will bar it from recovery. See Georgia, Florida & Alabama Ry. Co. v. Blish Co., 241 U. S. 190; Barrett v. Van Pelt, supra; Davis v. Roper Lumber Co., 269 U. S. 158. It was argued by petitioner in the state court, as it argues here, that, as respondent offered no direct evidence that the damage to the goods in transit was caused by negligence of petitioner, respondent did not show compliance with the requirements of the Cummins Amendment for relieving the shipper from the necessity of filing its claim in writing with the carrier. On the other hand, it is argued by the respondent that every carrier receiving goods for carriage in good condition, and returning them in bad condition, is conclusively presumed to have been negligent and is liable for the damage resulting from its negligence, unless the injury was caused by the act of God, the public enemy, or the act of the shipper, or the nature of the goods themselves; that, as the evidence and the verdict of the jury established that the damage was not due to any of these causes, the carrier's negligence was to be conclusively presumed, and no notice of claim was necessary under the provisions of the Cummins Amendment. It is sometimes said that the basis of the carrier's liability for loss of goods or for their damage in transit is presumed negligence." Hall & Long v. Railroad Companies, 13 Wall. 367, 372. But the so-called presumption is not a true presumption, since it cannot be rebutted, and the statement itself is only another way of stating the rule of substantive law that a carrier is liable for a failure to transport safely goods intrusted to its care, unless the loss or damage was due to one of the specified causes. See Railroad Co. v. Reeves, 10 Wall. 176, 189; Railroad Co. v. Lockwood, 7 Wall. 357, 376; Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 181. We do not consider that the phrase "carelessness or negligence" of the carrier, as used in the Cummins Amendment in exempting shippers from giving written notice of a claim for damage, has any reference to the conclusive "presumption" to which we have referred. If such were the meaning of the statute, every case of carrier's liability for damage in transit would be a case of presumed negligence, and proof of written notice of claim for damage required by the bill of lading would always be dispensed with, and the plain purpose of the amendment would be defeated. We think that by the use of the words "carelessness or negligence," it was intended to relieve the shipper from the necessity of making written proof of claim when, and only when, the damage was due to the carrier's actual negligent conduct, and that by carelessness or negligence is meant not a rule of liability without fault, but negligence in fact. See Barrett v. Van Pelt, supra. There is no language in the statute from which a purpose may be inferred to vary or limit the common law rules governing proof of negligence as a fact in issue, and the shipper may follow these rules when he seeks to show that no notice of claim was necessary. The respondent therefore had the burden of proving the carrier's negligence as one of the facts essential to recovery. When he introduced evidence to show delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner became subject to the rule applicable to all bailees, that such evidence makes out a prima facie case of negligence. Miles v. International Hotel Co., 289 Ill. 320; Miller v. Miloslowsky, 153 Ia. 135; Dinsmore v. Abbott, 89 Me. 373; Railroad Co. v. Hughes, 94 Miss. 242, 246; Hildebrand v. Carroll, 106 Wis. 324. The effect of the respondent's evidence was, we think, to make a prima facie case for the jury. See Sweeney v. Irving, 228 U. S. 233; Haines v. Shapiro, 168 N. C. 34, 35; Sims v. Roy, 4 App. D. C. 496, 499. But even if this "prima facie case" be regarded as sufficient, in the absence of rebutting evidence, to entitle the plaintiff to a verdict (Bushwell v. Fuller, 89 Me. 600, 602, 603; Cogdell v. Railroad, 132 N. C. 852), the trial court erred here in deciding the issue of negligence in favor of the plaintiff as a matter of law. For the petitioner introduced evidence of the condition of the cars from the time of shipment to the time of arrival, which persuasively intended to exclude the possibility of negligence. The trial court properly submitted to the jury the question whether the damage was due to an act of God or the public enemy or to the inherent condition of the stoves, since upon the answer to it depended the liability of the carrier provided the shipper was entitled, under the Cummins Amendment, to maintain suit without giving the stipulated notice. But the court erroneously instructed the jury that if they found that the damage was not due to these causes, they might return a verdict for the respondent, thus, in effect, resolving the issue of negligence in favor of the respondent. The judgment must therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. ASHE, WARDEN OF THE STATE PENITENTIARY, v. UNITED STATES EX REL. VALOTTA. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 521. Argued March 5, 1926.-Decided March 15, 1926. Relator, having been indicted in the state court separately for each of two closely connected murders, was given a single trial on both indictments, in which he was deprived of the full number of challenges he would have had if tried separately on each. Conviction on both indictments was sustained by the state supreme court. He was discharged by habeas corpus in the federal District Court. Held: 1. The state trial court had jurisdiction even if the joinder was contrary to state law. P. 425. 2. The decision of the state supreme court on state law, with respect to the trial and the challenges, was not re-examinable. Id. 3. The joint trial of the two charges, and limitations of the challenges, was within the constitutional power of the State. Id. 4. The interference by habeas corpus was unwarranted. P. 426. 2 Fed. (2d) 735, reversed. APPEAL from an order of the District Court, in habeas corpus, discharging the relator Valotta from the custody of the appellant, by whom he was held for execution of a death sentence pursuant to a judgment of a state court. Mr. James O. Campbell, Deputy Attorney General of Pennsylvania, with whom Messrs. George W. Woodruff, Attorney General, Samuel H. Gardner, and Harry A. Estep were on the brief, for appellant. Mr. George R. Wallace, with whom Mr. Franklin A. Ammon was on the brief, for appellee. MR. JUSTICE HOLMES delivered the opinion of the Court. This is an appeal from an order on a writ of habeas corpus discharging the relator, Valotta, from the custody 424 Opinion of the Court. of the appellant by whom he was held under a sentence of death. Valotta shot a man in a street brawl-we will assume, in circumstances that suggest considerable excuse and then killed a policeman who pursued him, within a short distance from the first act. He was indicted separately for the murder of each man, tried in a Court of Pennsylvania, found guilty of murder in the second degree for the first killing and guilty of murder in the first degree for the second, and was sentenced to death. The judgment was affirmed by the Supreme Court of the State. (279 Pa. 84.) No writ of error or certiorari was applied for, Valotta having no funds and his counsel being ignorant of the statute authorizing proceedings in such cases without prepayment of fees or costs. But when the time for such proceedings had gone by, a writ of habeas corpus was obtained from a judge of the District Court of the United States with the result that we have stated. The grounds of the order seem to have been that Valotta was tried upon two indictments for felony at the same time and was deprived of the full number of challenges that he would have had if he had been tried separately upon each. There is no question that the State Court had jurisdiction. But the much abused suggestion is made that it lost jurisdiction by trying the two indictments together. Manifestly this would not be true even if the trial was not warranted by law. But the Supreme Court of Pennsylvania has said that there was no mistake of law, and so far as the law of Pennsylvania was concerned it was most improper to attempt to go behind the decision of the Supreme Court, to construe statutes as opposed to it and to hear evidence that the practice of the State had been the other way. The question of constitutional power is the only one that could be raised, if even that were open upon this collateral attack, and as to that we cannot doubt that Pennsylvania could authorize the whole story |