themselves in attempting to break away from the fastenings by which they are secured, or they may kill each other by crowding, plunging, or goring; the motion of the cars, their frequent concussions, the scream of the engine, often create a kind of frenzy in the swaying mass of cattle; and the carrier is not held liable for injuries or losses arising from the irrepressible instincts of this living freight, which he could not prevent by the exercise of diligence and care. Using all due and reasonable care, he is not liable for the loss of an animal that escapes by its own efforts from the cattle car and is killed; or for the loss of an animal killed on a vessel in a storm at sea, by straining, caused by the roll or motion of the ship; or for an injury inflicted by one horse upon its mate, in transit on a railway, where the injury results from the peculiar character and propensities of the horse, such as fright or bad temper; or for injuries resulting from the owner's fault in fastening the animal, or in omitting to remove his shoes; or for any injury resulting from the proper vice of the animal. If the animal, a horse for example, be placed in a car and secured in the usual manner, and found injured at the place of destination, the carrier is not liable unless it be found from the nature of the injury, or from some accident on the journey, or from some defect in the conveyance, that the damage resulted from his negligence."

§ 681. The carrier of live stock must exercise reasonable diligence in the business, and he must complete the journey within a reasonable time. He is liable as a common carrier for the construction and equipment of his road, for the running of his trains, and generally, except so far as his responsibility is modified by contract or by the inherent vice of the freight itself.

1 Clarke v. Rochester & Syracuse R. Co., 14, N. Y., 570; 21 Mich., 165, 189; 49 N. Y., 204.

2 Great Western R. Co. v. Blower, 2 English (Moak), 700.

3 Nugent v. Smith, 1 L. R. C. P. Div., 423; 45 L. J. C. P. Div., 697; 34 L. T. N. S., 827; 25 W. R., 117 C. A. Case of a horse carried by the sea from London to Aberdeen, and killed by fright and consequent struggling.

+ Evans v. Fitchburg R. Co., 111 Mass., 142; Richardson v. N. E. R. R., 7 C. P., 75; 14 N. Y., 570.

5 Smith v. New Haven R. Co., 12 Allen (Mass.), 531.

6 Kendall v. London & Southwestern R. Co., 2 English (Moak), 700; Clarke v. Rochester & Syracuse R. Co., 14 N. Y., 570. The circumstances of these cases are very much alike; the causes of the injury being a matter of inference from the nature of the injury and the apparent manner of it.

7 Harris v. Northern Ind. R. Co., 20 N. Y., 232; Conger v. Hudson River R. R. Co., 6 Duer, 375; German v. Chicago & N. R. Co., £3 Iowa, 137.

Wilson v. Hamilton, 4 Ohio St., 722; Great Western R. Co. v. Hawkins, 18 Mich., 427; Kansas Pacific R. Co. v. Nichols, 12 Amer. R., 494, note 500; S. C., 9 Kansas, 235; Kimball v. Rutland R. Co., 26 Vt., 427; 14 N. Y., 570; 20 N. Y., 232; 10 Ohio St., 65.

There is some imperfection in this mode of stating the liability of a carrier of live stock; since it calls for a careful definition of his duty to guard against losses likely to arise from the nature of different animals, confined in trucks, cars, or vessels, on the route of transportation: a duty which requires him to use foresight, vigilance and care to prevent injuries from the nature or conduct of the animals, such careful precautions and diligence as may be reasonably expected from a man engaged in the business. He is not an insurer against injuries arising from the nature and propensities of the live stock carried by him; and his liability is not limited to a careful and safe conveyance of the car containing them. He must provide in advance suitable and proper means to insure the safe conveyance of the property; and he must use these means with all reasonable diligence and forethought, in the varying circumstances and exigencies arising in the business.2

§ 682. Under the English decisions prior to the statute of 1854, the carriage of live stock by the railways was regulated by contract; the companies receiving these chattels under a special agreement, by the terms of which the owners or their servants accompanied the trains, taking care of and feeding the cattle during the journey. And in some instances the charge for freight was made expressly for the use of the railway carriages and locomotive power only, with an express stipulation that the company would not be responsible for any alleged defects in the carriages used, unless complaint was made at the time of booking; nor for any damages, however caused, in the journey of transportation.

The railway companies were not at first declared common carriers; and they were regarded or treated as common carriers only so far as they voluntarily became such. Refusing to accept the character in the transportation of live stock, they were held liable as bailees, under and

1 Clarke v. Rochester & Syracuse R. Co., 14 N. Y., 570; Nugent v. Smith, supra.

2 Besides providing safe and properly constructed vehicles or conveyances, a railway carrier of live stock must provide convenient stations or stopping places along the road, where the cattle may be fed; and it must provide a proper supply of water for the use of the stock; and in carrying live hogs in warm weather, it is the carrier's duty to provide and to apply water to them, to prevent them from being suffocated or overheated. It is also bound to start its trains loaded with cattle, promptly; and unless prevented by some exensing cause, it is bound to arrive on time, or pay the damages caused by its delay. Toledo, Wabash & W. R. Co. v. Thompson, 71 Ill., 434; Toledo, Wabash & W. R. Co. v. Hamilton, 77 Ill., 333; St. Louis & S. R. Co. v. Dorman, 72 Ill., T04; Ill. Central R. Co. v. Waters, 41 Ill., 73; Ill. Central Co. v. Owens, 53 Il., 391; Cragin v. N. Y. Cent. R. Co., 51 N. Y., 61; 49 N. Y., 204, 233; Harris v. Northern Ind. R. Co., 20 N. Y., 232; Nugent v. Smith, cited above, under § 680.

according to the terms of the contract, in each case. In this manner they were able to escape all liability in the conveyance of live stock, not involving willful misconduct or misfeasance on their part.1

2

Since the passage of the act of 1854 the English railways are only allowed to impose reasonable conditions. They cannot relieve themselves from all liability for injuries in the transit; and it is adjudged that a condition whereby a railway company disavows liability for any injury to cattle carried by them, in consequence of over-carriage, detention or delay, is unreasonable, though the charge for transportation be reduced below the usual rate. The common law does not allow a party to shield himself by a dishonest contract; and this statute does not permit a railway company to protect itself by an unreasonable stipulation; and it restricts even a reasonable stipulation to its fair scope and operation.*

1 Decision prior to 17 and 18 Vict., c. 31. The contract prior to the statute created a special relation, and was allowed to relieve the carrier according to its terms, even from an injury caused by a collision; Great Northern R. Co. v. Morville, 7 Eng. Railw. Cas., 830; 10 Eng. Law and Eq., 366; and from all risks of the conveyance whatsoever; Shaw v. York & North M. R. Co., 6 Eng. Railw. Cas.. 87; 13 Q. B., 347. The owner of the animals was obliged to bring his action upon the actual contract, and could only recover on showing a breach thereof. Austin v. Manchester, S. & L. R. Co., 16 Q. B., 600; 15 Jur., 670; 5 Eng. Law and Eq., 329; Carr v. Lancashire & Y. R. Co., 7 Exch., 707; 7 Eng. Railw. Cas., 426; 17 Jur., 397; 14 Eug. L. and Eq., 340; Chippendale v. L. & Y. R. Co., 17 Eng. L. and Eq., 399. A railway company letting trucks for hire for the conveyance of horses, delivered to the owner of the horses a ticket in which it was stated that the owners were to undertake all risks of injury by conveyance and other contingencies, and further stipulated that the company would not be liable for any damages, however caused, to horses or cattle; held that the owner of the horses could not recover for damage done to them through the breaking of an axle, attributable to the culpable negligence of the company's servants. Austin v. Manchester, Sheffield & L. R. Co., 10 C. B., 454; Railw. Cas., 300, A. D. 1850. The contract was enforced as made; Walker v. York & North M. R. Co., 2 El. & Bl., 750, A. D. 1853; same principle affirmed in Canada. Dodson v. Grand Trunk R. Co., 7 Canada L. J. N. S., 263.

2 Gregory v. West. M. R. Co., 2 H. & C., 944; Lloyd v. Waterford & L. R. Co., 15 Ir. C. L. R., 37; 9 L. T. N. S., 89 Q. B.

3 Allday v. Great Western R. Co., 5 B. & S., 903.

4 A contract for the carriage of a cow contained this stipulation: "The Great Northern Railway Company give notice that they convey horses, cattle, sheep, pigs, and other live stock in wagons subject to the following condition: that they will not be responsible for any loss or injury to any horse, cattle, sheep or other animal, in the receiving, forwarding or delivering, if such damage be occasioned by the kicking, plunging or restiveness of the animal;" and it was held that the stipulation did not relieve the company for the negligence of its servants in taking the animal out of the truck at the place of destination, where the creature was killed partly through its fright or restiveness. Gill v. Manchester, S. & L. R. Co., 42 L. J. Q. B., 89; 8 L. R. Q. B., 186.

§ 683. As we have no statute in this country limiting or qualifying the freedom of parties to make such contracts as they deem proper, our railroad companies are left free to make such contracts for the conveyance of live stock as the common law will enforce. They cannot, being common carriers, impose their own terms; and they cannot, according to a well defined line of authorities, stipulate for exemption from liability for the negligence of themselves or their servants-an inability which assumes that the principle of the English statute exists in the common law itself. With this qualification, or without it according to the English decisions followed by many of our States, our railroad carriers are at liberty to, and do practically carry on the business of conveying live stock under special agreements prescribing their liabilities; so that in some cases the contract covers the entire transaction, and furnishes the measure of the carrier's liability; and in some cases relieves him of certain specified risks, and leaves him liable under an implied contract for others.

We have then, first, a difference in principle to deal with; some of our States holding with the United States Supreme Court, that a common carrier cannot exempt itself from liability, by contract or otherwise, for losses or injuries caused by the negligence of its agents and servants;2 and others holding with the English decisions, already cited, that the railway carrier may thus limit its liability by an express contract. In the second place, we have two classes of contracts for the conveyance of live stock; one broad and general, covering the entire business, and the other limited to a few particulars.

§ 684. The contract now in use for the conveyance of live stock on many of our railroads, is very comprehensive. It charges the shipper with the loading and unloading of the stock, at his own risk, and it imposes upon him in express terms all and every risk of injuries which the

1 Welch v. Boston & Albany R. R. Co., 41 Ct. 333; Welch v. Pittsburgh, Ft. W. & C. R. R. Co., 10 Ohio St., 65; Farnham v. Camden & Amboy R. R. Co., 15 Penn. St., 53; Colton v. Cleveland & Pitts. R. R. Co., 67 Penn. St., 211; Railroad v. Lockwood, 17 Wall., 337, and authorities there cited; Railroad Co. v. Pratt, 22 Wall., 123.

2 41 Conn., 333; 10 Ohio St., 65; 55 Penn. St., 53; 22 Wall., 123. “I do hereby release the said railroad company from any and all claims which may or might arise for damages or injury to said stock, while in the cars of said company, or for delay in its carriage, or for escape thereof from the cars, and generally from all claims relating thereto." This release does not exonerate the company, under the law of Pennsylvania, from the consequences of negligence in the performance of their duty as carriers, such as permitting straw to be used in a car where a horse is placed, and which taking fire destroys the horse. Powell v. Penn. R. Co. 32 Penn. St., 414.

animals or any of them may receive in consequence of being wild, unruly, vicious or weak, or by escaping, maiming or killing themselves or each other, and all injuries from delays, or in consequence of heat, suffocation or the ill effects of being crowded in the cars upon the road, or from the burning of any hay or straw or other material used by the owner in feeding them, and all damages sustained by delay. The contract assumes that the owner or his servant shall accompany and water and feed and have charge of the cattle; and that he shall ride on the train, without paying fare, at his own risk. The railroad company in substance only undertakes to convey the car containing the cattle safely, and with reasonable dispatch; it lets the cars at a fixed sum, and agrees to run them to the place of destination; the owner retaining the custody and care of the cattle while in transit.1

1 Penn v. Buffalo & Erie R. Co., 3 Lansing, 443; S. C., 49 N. Y., 204. The report gives a copy of the

STOCK CONTRACT.

CLEVELAND STATION, Dec. 8, 1866. Memorandum of an agreement made and concluded this day above named, by and between Cleveland, Painesville & Ashtabula, Erie & North East, Buffalo & State Line (afterward the Buffalo & Erie Railroad Company, the defendant) Railroad Companies, of the first part, by their agent at the above named station, and Penn & Co., of Cincinnati, of the second part, witnesseth: That whereas, the said railroad companies transported live stock only at first-class rates, as per their tariffs, excepting only in cases where the owners assume certain risks and incidents specified below, in consideration of obtaining the transportation at reduced rates; and whereas the said party of the second part in the present case assumes and takes upon himself said risks and incidents for said consideration: Now, therefore, in consideration that said railroad companies will transport for the said party such live stock at the reduced rate of fortyfive dollars for single decks, and dollars for double decks per car load from Cleveland to Buffalo, and charges advanced,

The said party of the second part does hereby agree to take, and hereby does assume all and every risk of injuries which the animals or either of them may receive in consequence of any of them being wild, unruly, vicious, weak, escaping, maiming or killing themselves cr each other, or from delays, or in consequence of heat, suffocation, or the ill effects of being crowded upon the cars of said railroad, or on account of being injured by the burning of hay, straw or any other material used by the owner for feeding the stock or otherwise, and for any damage occasioned thereby, and also all risk of any loss or damage which may be sustained by reason of any delay, or from any other cause or thing in or incident to, or from or in the loading or unloading of said stock.

And it is fur her agreed that the said party of the second part is to load and unload said stock at his own risk, the said railroad companies furnishing the necessary laborers to assist, under the direction and control of the said party of the second part, who will examine for himself all the means used in the loading and unloading, to see that they are of sufficient strength and of the right kind, and in good repair and order.

And it is further agreed between the parties hereto, that each and every of the parties riding free to take care and charge of said stock, do so at their own risk of personal injury from whatever cause; and the said party of the second part, for the consideration aforesaid, hereby releases and agrees to release and to hold harmless and keep indemnified the said party of the first part of and