that it should be shown that the defendant had knowledge of or from the circumstances of the case and the course of the trade, it might have reasonably been inferred that the cattle were intended for the market of that day.

6th. That it ought to have been submitted to the jury to find whether the defendant had made proper exertions, and used due and reasonable diligence, under all the circumstances of the case to avoid all unnecessary delay in the transportation of the cattle; or whether the cattle could have been carried forward with greater expedition and despatch than they were, by the use of reasonable precaution and diligence on the part of the defendant, under the circumstances in reference to which it was called upon to act.

7th. That if the defendant had been guilty of such negligence in the transportation of the stock as to render it liable, it could not relieve itself by showing that a connecting road might have made up for its default.

8th. That the mere fact that the plaintiffs' agent had knowledge of what had been done, or what was being done in regard to the cattle, and their destination, could in no manner affect the defendant's liability for failure or neglect in the discharge of its duty as carrier.

APPEAL from the Circuit Court for Howard County.
The case is stated in the opinion of the Court.

Exception. At the trial the plaintiffs offered the two following prayers:

1. If the jury find from the evidence that on the evening of the 28th of July, 1878, at a little before seven o'clock, thirteen car loads of cattle belonging to the plaintiffs were delivered by the Baltimore and Ohio R. R., on the tracks of the defendant, at Canton Ferry, to be carried over the defendant's road to Philadelphia, and thence by the Pennslyvania R. R. to Jersey City, for the market of Monday, July 29, 1878, and that defendant was not in the habit of running freight trains over its road on Sunday, but was in the habit of running trains on Sunday, especially for the purpose of transporting cattle from Baltimore, to be delivered in Jersey City in time for the market of Monday; and that said cars were taken by the defendant's engine and employees from said Ferry to Canton Yard, and were there allowed to remain standing on defendant's tracks for about five hours; and shall further find that the ordinary running time for stock trains from Baltimore to Jersey City, was from ten to twelve hours, and that in consequence of such delay at Canton Yard, said cattle did not reach Jersey City in time for the market of Monday, and that the plaintiffs thereby sustained loss, then the plaintiffs are entitled to recover.

2. If the jury find for the plaintiffs under their first prayer they may embrace in their verdict any loss which they may find to have been sustained by the plaintiffs from loss in weight, or shrinkage in the cattle, from decline in the market value between the time when they could have been sold, if they had been transported with due dispatch and the time when they were actually sold, and any expenses incurred by the plaintiffs in feeding the cattle during

such period for which they were held over by reason of any failure to transport them with due dispatch.

And the defendant offered the six prayers following:

1. That if the jury shall find that at the time of the injury complained of, the defendant advertised no freight trains for Sunday, and ran no regular freight trains on that day of the week, and that having regard to the day being Sunday, and the manner and time of the notification from the delivery by the Baltimore and Ohio R. R. Co., and the means of transportation in the defendant's power, when such notification was received, and the other circumstances of the case, the defendant used reasonable diligence in forwarding the plaintiff's stock, then the plaintiffs are not entitled to recover, and their verdict must be for the defendant.

2. That if the jury shall find from the evidence, that the defendant gave such notice to the agents of the Pennsylvania R. R. Co., of the intended delivery to it of plaintiff's stock, and delivered it to that company at such a time as to enable the Pennsylvania R. R. Co., by the use of reasonable diligence to deliver the same at Jersey City in time for Monday's market, then the plaintiffs are not entitled to recover, and their verdict must be for the defend

ant.

3. If the jury shall find that the intended delivery to defendant of plaintiffs' stock, was not notified to defendant at such a time and in such a manner, and that the same was not delivered to defendant at such a time and in such a manner, as to enable defendant by the exercise of reasonable diligence to forward the same to the Pennsylvania R. R. Co., in time for that company by the exercise of reasonable diligence to deliver the same in Jersey City, in time for Monday's market (and that the defendant did not receive the cattle for that purpose), then the plaintiffs are not entitled to recover, and their verdict must be for the defendant.

4. If the jury shall find from the evidence, that at the time of the injury complained of, the defendant advertised no freight trains to run on Sunday, and ran no regular freight trains on that day of the week, and that stock from the west transported over the Baltimore and Ohio R. R. was received by defendant on Sunday, for transportation over its road, in pursuance of an understanding and agreement between defendant and said Baltimore and Ohio R. R. that such stock would be transported over its line on Sunday, upon the defendant's receiving reasonable and proper notice of the arrival of such stock for transportation over defendant's road; and if the jury further find, that the stock mentioned in the declaration, did arrive in Baltimore City on Sunday, July 28, 1878, and was delivered by the Baltimore and Ohio R. R. Co., to defendant, for transportation over its road, and that the notice to the defendant of the arrival of the stock was not, under all the facts and circumstances of the case, reasonable and proper to enable the defendant

to transport the same over its road, so that the same could be delivered to the Pennsylvania R. R. Co., for transportation, in time to reach the New York market the succeeding day, and that upon notice to the defendant of the arrival of said stock, the defendant used all reasonable and proper diligence for the transportation of the same over its road, and delivered the same with reasonable and proper diligence to the Pennsylvania R. R. Co., for transportation to their point of destination, then the plaintiffs are not entitled

to recover.

5. That if the jury shall find from the evidence, that the plaintiffs' cattle were shipped from the West for Jersey City, to be trans ported over the line of defendant's road, and those of other companies, then the defendant is only liable for delays occurring on its own road, and if the jury shall find that defendant, on receiving the same, used, under all the circumstances of the case, reasonable diligence in forwarding it and delivering it to the next road, that of the Pennsylvania R. R. Co., then the plaintiffs are not entitled to recover (unless the jury find for the plaintiffs under the first prayer).

6. That if the jury shall find that the defendant ran no regular freight trains on Sunday, and advertised no freight trains on that day, and the stock in question mentioned in the declaration did arrive in Baltimore on Sunday, July 28, 1878, and was delivered by the Baltimore and Ohio R. R. Co. to defendant for transpor tation over its road, and that the notice to the defendant of the arrival of said stock was not, under all the facts and circumstances of the case, reasonable and proper to enable the defendant to transport the same over its road, so that the same could be delivered to the Pennsylvanja R. R. Co., for transportation in time to reach the New York market the succeeding day, and that upon notice to the defendant of the arrival of said stock, the defendant used all reasonable and proper diligence for the transportation of the same over its road, and delivered the same with reasonable and proper diligence to the Pennsylvania R. R. Co., for transportation to their point of destination, and that said stock was in charge of Richard Harrold, the shipper on part of plaintiffs, and representing the plaintiffs, and that the defendant received said stock, and transported the same over its road, with the knowledge and consent and acquiescence of said Harrold, representing the plaintiffs; and further find, that the said Harrold knew the delay of said stock at Canton, and knew that said stock was intended for the New York market on Monday, then the plaintiffs are not entitled to recover.

The Court (HAYDEN, J.) granted the prayers of the plaintiffs, and rejected the first, second, fourth and sixth prayers of the defendant, and modified its third and fifth prayers, by adding the words contained in brackets, and granted them as thus modified.

The defendant excepted, and the verdict and judgment being rendered against it, appealed.

The cause was argued before BARTOL, C. J., BOWIE, ALVEY and IRVING, J.

John J. Donaldson and Henry E. Wootton, for appellant.

The declaration charges the defendant with negligence in its calling as a common carrier on a Sunday. The defendant could be under no common law duty as common carrier, to carry on Sunday. Art. 30, sec. 178, of the Code; Walsh v. R. R. Co., 42 Wis. 23; Johnston v. Commw., 22 Pa. St. 102; Powhatan St. Co. v. Appomatox R. R., 24 How. 255-7; Merritt v. Earle, 29 N. Y.

120.

It could only be bound by special contract to carry on that day; and the declaration is defective, in that no such special contract is alleged, or averments made from which the same could be inferred.

The declaration charges defendant as a common carrier, yet makes the gist of the cause of action to lie in a failure to deliver at a given time. In the absence of a special contract for delivery at a given time, common carriers are not bound to such a delivery. Story on Bailments, sec. 545a; 2 Redfield on Railways, 192, and notes; Taylor v. Gt. N. Ry., 12 Jur. N. S. 372; Broadwell v. Butler, 6 McL. 296; Conger v. Hudson R. R., 6 Duer, 375; Wibert v. N. Y. and E. R. R., 19 Barb., 36, and 2 Kern. 245; Peet v. Chicago and N. W. R. R., 20 Wis. 594; Hurst v. Gt. W. Ry. Co., 19 C. B. N. S. 310; Hales v. Lond. and N. W. Ry., 4 B. and S. 66; Taylor v. Gt. N. Ry., 1 L. R. C. P. 385; Parsons v. Hardy, 14 Wend. 215.

It is not even stated that the defendant knew the cattle were intended for Monday's market, for the failure to reach which damages are claimed. Such knowledge is necessary to the carriers' liability for failure to fulfil the purpose. Horne v. Midland Ry., 8 L. R. C. P. 131.

Art. 30, sec. 178, of the Code of Public General Laws forbids all labor, etc. ("works of necessity and charity always excepted"). Then, whether the Sunday carriage of plaintiffs' cattle was or was not in fact such a work of charity or necessity, the declaration is fatally defective, in that it does not bring the cause of action within the exception, either in terms or by averment of facts that would make it applicable. 1 Chitty's Pl. 233; Pate v. Wright, 30 Ind. 476: Jones v. Andover, 10 Allen, 21; Kent v. Holliday, 17 Md. 387; Bode v. State, 7 Gill, 326.

The rule of diligence by which carriers are bound, is to deliver goods within a reasonable time, having regard to all the facts and circumstances of the case. Story on Bailments, sec. 545a; 2 Redfield on Railways, 192, and notes.

And what is a reasonable time is a question of fact for the jury

to decide, depending upon such circumstances. Nettles v. T. C. Ry., 7 Rich. 190, 409; Conger v. Hudson R. R. R., 6 Duer, 375; Mich., etc., R. R. Co. v. McDonogh, 21 Mich. 165.

The plaintiffs' first prayer is, therefore, fatally defective. Not only does it decide, as matter of law, that, if the jury find the facts enumerated, the defendant did not use due diligence, but it entirely omits some of the most material facts given in evidence, for example: that all the crews for the running of trains, are (with the exception of one sent off before notification of the coming of plaintiffs' stock) in Philadelphia; that the invariable course was for the Baltimore and Ohio R. R. Co. to give notice of the cattle for next day's transportation; that that company had, on the 27th, notified defendant that it would have twenty to thirty cars, while, in fact, there came and were sent off on the 28th, before President Street was notified of plaintiffs' thirteen cars, thirty-nine cars of stock; that the Baltimore and Ohio R. R. Co. knew at 9.19 a. m. of the 28th, of the expected arrival of plaintiffs' cattle, and though defendant's operator was in his office till 11 a. m., that company never notified him, etc., etc.

The prayer, then, is obnoxious as presenting to the jury a number of facts segregated from the rest of the facts proved in the case, and some of those precisely the most important. Riggin v. Patapsco Ins. Co., 7 H. & J. 291; Beall's Lessee v. Beall, 7 Gill, 237 Beall v. Pearre, 12 Md. 550, 568; Fulton v. McCracken, 18 Md. 528; Cook v. Carr and Wife, 20 Md. 403; Folk and Smith v. Wilson, 21 Md. 538; Connor and Gatch . The Mt. Vernon Co. 25 Md. 55; Thomas v. Sternheimer, 29 Md. 268; Winner v. Penniman, 35 Md. 163; Stansbury v. Fogle, 37 Md. 387; McWilliams v. Hoban, 42 Md. 63.

This prayer also assumes a duty on the part of defendant to deliver the cattle so as to reach Jersey City at a given time. Such a duty can only arise on a special contract so to do. The prayer is misleading, if it intended to leave to the jury the question whether there was such a contract, as it is nowhere clearly put to them. If it meant to state a common law duty, it is bad.

Further, if founded on a supposed common law duty, the prayer is bad as not leaving it to the jury to find the facts that would make defendant a common carrier on that day of the week, e. g.: that defendant held itself out as ready to carry for every one. B. and O. R. R. v. Green, 25 Md. 72; Ingate v. Christie, 3 C. & K. 61; Johnson v. Ry. Co., 4 Exch. 367.

Nor is the prayer good if grounded on a supposed special contract, for it leaves out the most material facts from which it might be attempted to infer such a contract. For such a purpose all the accompanying circumstances must be put to the jury. B. and O. R. R. v. Green, 25 Md. 72.