ligently carried them beyond the destination to which they were shipped, in consequence of which they were deprived of the attentions of the shippers and their agents, and were without food or water during two days, held, the carrier was liable for damages occasioned to the stock thereby.

CRAWFORD, J., delivered the opinion of the court:

Bryant and Sockett sued the Southwestern R. R. Co. to recover damages for losses sustained upon a car load of mules shipped from Atlanta to them at Americus. The allegations upon which they relied for a recovery were: That the mules were delivered and received in good order by said railroad company at Macon, to be delivered in like good order to Sockett at Americus, on the 22d day of January, 1881; but by the careless and negligent conduct of its agents and employees, said car load of mules was sent to Dawson, forty miles beyond Americus, and there kept for three or four days without attention, to their injury $500. The jury returned a verdict for the defendant, which plaintiff moved to set aside, but the motion was overruled, and they excepted.

The evidence material to a decision of the questions made by this bill of exceptions is, that the mules belonging to the plaintiffs were shipped in a car "billed" to Dawson, and consigned to one Thornton, whilst Thornton's mules were consigned to the plaintiffs at Americus. Thus the plaintiff's mules were carried beyond their destination, were shipped to Dawson, and remained in the car from the time on Sunday, when they should have been unloaded, until Tuesday at twelve o'clock, without attention, water or food. They were so damaged by the confinement and inattention that some of them were almost wholly lost, and the rest were injured $20 a head. Other proof of losses were also introduced.

The defendant introduced in evidence a "live-stock contract," by which it was agreed that the shipper should release the railroad company from liability from all injury, loss or damage, from the character of the freight, and from all other damages which shall not have been caused by the fraud or gross negligence of the company. Other stipulations were incorporated, but nothing material to be added which affects the rights of the parties after the mules were carried beyond the place of delivery.

It further appears that the mules were taken out of the car at Macon en route, watered and fed, and then reloaded, and received by the defendant. No evidence was submitted controverting the facts that they were carried to Dawson; that they were without water, food or change from the time they were received on Sunday at Macon until delivered at Americus on Tuesday at twelve o'clock, or that the losses set up were not true.

The judge charged the jury as follows: "In the contract between plaintiff and the Central R. R. Co., it is especially stipulated that they, nor the road receiving that property from them, shall not be liable for any attention, feeding, or watering the stock, but that

they should offer reasonable facilities to the shipper or person in charge of the stock. The railroad company merely undertook to offer, or afford, them facilities for feeding and watering the stock, not to feed and water them itself. It was stipulated that the shipper should not hold the railroad company responsible for any delay occurring in the delivery of the property, but that the shipper should attend to the stock, and feed them and water them. There fore the Southwestern R. R. Co. is not liable for any injury that occurred to those mules for want of being fed and watered, for people are bound by their contracts, by the contracts which they may make."

"If you should believe from the evidence that Sockett's car load of mules was, by mistake of a person in Atlanta, connected with the Central R. R. Co., shipped to a person in Dawson, and not to Sockett in Americus, and that the Southwestern R. R. Co. received these mules in Macon so consigned to a person in Dawson, and carried them to Dawson, and that, whatever damage they sustained occurred at that point by reason of their being shipped to that point, and not being fed and watered there, why, then, in my judgment, the Southwestern R. R. Co. is not liable for such damages."

The first paragraph of the foregoing charge would be correct if the railroad company had carried out its contract by a delivery of the mules at Americus, as it agreed to do, and had not shipped them beyond. The plaintiff's contract extended to the attention, feeding and watering the mules only to the place of their destination; and had the delay occurred, and the damage been sustained before reaching it, just as it did afterwards, then the plaintiffs could not have recovered. He had the right to expect, according to his contract, that his mules would be delivered at the place of their consignment, and, therefore, was not bound to follow them to Dawson, and feed, and water, and care for them there.

The judge truly stated the law in instructing the jury that people were bound by their contracts, and on construction of this contract that the Central R. R. and its connecting lines were to transport this live stock to Americus and no further; if they did, and damage accrued to the owner thereby, they were liable to respond.

The objection to the second paragraph of the foregoing charge is, that it relieved and discharged the Southwestern R. R. Co. from liability on the contract agreed upon by the Central R. R. for itself and the Southwestern to transport and deliver to the owners at Americus this car load of mules, and which it undertook to execute but failed to perform; and, although a mistake at Atlanta may have been made by an agent of the Central R. R. in shipping these mules improperly, yet such mistake would not relieve the defendant from liability under the facts as shown by the record in this case. It was a party to the contract. When, therefore, it broke its contract by passing Americus and carrying to Dawson the plaintiffs' mules,

they were entitled to recover for such breach of the contract, and for all damages consequent thereon, whether the same resulted from the failure to feed or water the mules, or to make sale of them, or any other cause flowing directly therefrom.

Another assignment of error arises on the failure of the judge to charge: "That if the defendant had the mules in its possession, and while in its possession they were injured by the gross negligence of the agents and employees of said company in not feeding and watering them, then the defendant would be liable to the owners for such damage."

The plaintiffs were not entitled to this charge, as the gross negligence was confined to the watering and feeding generally, and not to the time whilst they were beyond Americus. Plaintiffs themselves were required to give this attention to Americus; but when they were shipped beyond that point, they had not undertaken to follow them wheresoever the company might carry them and continue such attention. If, then, after thus breaking the contract, they were damaged by such neglect, the defendant would be liable, and the plaintiffs were entitled to such charge so limited, but not so general as claimed. Judgment reversed.

THE LAKE SHORE AND MICHIGAN SOUTHERN R. R. Co.

v.

BENNETT.

(Advance Case, Indiana. June 22, 1882).

Where a person ships cattle over a railway under a special contract of carriage, he cannot elect to charge the railroad company with the liabilities of a common carrier.

A railroad company is not liable for delay in receiving and carrying goods or in transporting them after they have been received whenever the delay is necessarily caused by unforeseen disaster which human prudence cannot provide against, as by an uncontrollable mob.

The fact that a railroad company has reduced the wages of its employees cannot be held to justify or excuse a mob composed of indiscriminate persons in stopping trains and delaying the transportation of goods, nor can the company be held responsible for the consequences of such unlawful proceedings when they cause such delay.

Pittsburg, etc., R. R. Co. v. Hollowell, 65 Ind. 188, approved and followed.

Howk, J.-In this action, the appellee sued the appellant, in a complaint of two paragraphs.

In the first paragraph the appellee sought to recover damages of

the appellant for an alleged breach of its common law duty, as a common carrier for hire, in the transportation of freight. It is very clear, however, that the special findings and judgment below in this case were it not founded upon the first paragraph of the complaint, and, therefore, it need not be further noticed. In the second paragraph of his complaint the appellee alleged in substance that the appellant, before and at the time of committing the grievances thereinafter mentioned, was a common carrier of cattle and other live stock, for a certain price or reward paid to the appellant, and that, on July 21, 1877, at Kendallville station, in Noble county, Indiana, he delivered to appellant, and the appellant then and there received from him, one car-load of cattle, to wit, 16 head of cattle, of the value of $1,600.00, to be carried and conveyed upon appellant's railroad in a car from said Kendallville station to East Buffalo station, on said road, in the State of New York, without default, negligence or unreasonable delay, on the appellant's part, and to be delivered at East Buffalo station, without any unreasonable delay, by appellant to appellee; that the distance from Kendallville station to East Buffalo station was 388 miles; that by reason of the great distance and the nature of said property, it was necessary that a person should accompany said cattle, for the purpose of caring for and attending to them during their transit; that, for the purpose of so caring for and attending to said cattle, it was agreed by and between appellee and appellant, that the appellee, without extra charge, should be carried by appellant without delay, in the train of cars in which said cattle were to be transported from Kendallville to East Buffalo, and that appellee should care for and attend to said cattle, while being so transported; and to that end and purpose, the appellant executed, as did also the appellee, a written contract, a copy of which was therewith filed, whereby the appellant agreed that the appellee should have the care and control of said cattle, while on the appellant's grounds or in transit, and should direct and control the handling and loading and unloading of said cattle.

And the appellee averred that, in pursuance of said agreement, he entered upon said train of cars for the purpose of caring for and attending to said cattle, and was ready and willing so to do; but the appellant, not regarding its duty in that behalf, so negligently and improperly conducted itself in and about the carriage and conveyance of the appellee and his said cattle, that he and his cattle did not arrive, without unreasonable delay, at East Ruffalo station; that appellant, in violation of its said agreement, while said cattle were in transit and before they had arrived at the place of delivery, at a station called Collingwood, in the State of Ohio, without any fault of the appellee and without his consent, refused to permit him to have further care and control of said cattle, and, by its agents, servants and employees, then and there assumed the

sole and exclusive care and control of said cattle, for the space of eleven days, and then and there by its agents, servants, and employees, carelessly, negligently, and recklessly, without sufficient and safe reasons for so doing, unloaded said cattle from the cars, in which they were being carried, and, by reason thereof, said cattle were bruised, lamed, strained, and otherwise injured; that the appellant, by its servants and employees, then drove said cattle, with other and strange cattle, on foot a distance of twenty miles over a dusty road, and during intensely hot weather, to another station on said railroad, known as the Painsville station, and there confined appellee's cattle, with 75 head of other and strange cattle in a cattle-pen which was not large enough to properly contain more than thirty-two head of cattle, and still refusing to permit appellee to feed, water, care for and attend to his said cattle, kept them in such overcrowded condition without any shelter from the heat of the sun and protection from the weather in said cattle-pen with said other cattle, for the space of eleven days; that while being so driven, and while confined in said pen, said cattle were maimed, bruised and wounded by the other strange cattle and by each other, and were heated and worried, by reason of all which and by said delay, the said cattle, through the neglect and carelessness of appellant's agents, servants, and employees, became sick, sore, unsalable and greatly depreciated in condition, weight, and value; and by reason thereof, and by a fall of three cents per pound in price of cattle at said place of delivery, between the day when, by due diligence, said cattle ought to have been delivered, and the day of their actual delivery the said cattle were worth $490.00 less than they would have been if they had been properly handled, cared for and attended to, and been delivered at East Buffalo station without unreasonable delay.

And the appellee further said that, during the time his cattle were so delayed, at appellant's request he remained at Painsville, until the appellant again loaded the cattle upon the cars, and commenced again to carry them to East Buffalo station, to wit, for eleven days; that, during that time, he expended the sum of $25.00 for his board and lodging, and his time was reasonably worth the sum of $25.00; that he also paid, for feed and other expenses of his cattle, the sum of $75.00; and that he had been damaged in the premises in the sum of $490.00; wherefore, etc. The cause was put at issue and tried by the court, and at the appellant's request, the court made a special finding of the facts, and of its conclusions of law thereon.

The appellant excepted to the court's conclusions of law, upon the facts specially found, and filed its bill of exceptions. Its motion for a new trial having been overruled, and its exceptions saved to this ruling, the court rendered judgment for the appellee for his damages assessed, and costs.