Faxon v. Barnard.

as may be necessary to prevent mistakes on the part of the government and on the part of other citizens who may be asking the like bounty. This is reasonable, and necessary to justly administer the law, and therefore it must be said that without such description a certificate of location is void. On that ground the original certificate of defendants' grantor will be rejected, and as the relocation was posterior to plaintiff's, it cannot prevail against the latter. It remains to consider what would be the effect of actual possession by defendants or their grantors at the time the Ontario lode was located. For it appears that defendants' discovery shaft is in the ground in controversy, and they aver that they have been in possession since the lode was first opened. That they have not worked there constantly may be inferred from what has been done, for as the shaft is now only fifty feet deep, it is difficult to believe that three years and more have been occupied in sinking it. But defendants say that they have been on the ground constantly, and plaintiff asserts that they have never been there at all. In this conflict and imperfect statement of testimony, it is impossible on a preliminary motion of this kind to ascertain the fact, and we resort to some general rules which should control.

Plaintiff's position is, and must be, that the lode discovered by his grantors six hundred or seven hundred feet from the ground in controversy, extends from thence to the point occupied by defendants, and that defendants are on the same lode. Assuming that to be correct, the question is whether defendants or their grantors were in actual possession at the time plaintiff's location was made. That they were on the ground before that time is shown by testimony which is not contradicted, and the burden is upon the plaintiff to show that they were not there at the time of his location. For if they were then in actual possession, having uncovered the lode, plaintiff's grantor claiming by subsequent discovery could not oust them so long as they saw fit to remain there. As to the ground actually held by them, although if they failed to locate under the

Ormsby v. U. P. Railway Company.

law they could not claim more, no one by junior discovery could assert a superior title. Plaintiff's location may be valid up to the very point occupied by defendants' grantors, but it must be said that a location cannot be extended over a senior discovery in the actual possession of another. And so the evidence tending to prove that defendants or their grantors may have been in possession of the shaft in controversy at the time of plaintiff's location, and plaintiff having failed to meet that evidence successfully, the motion for injunction will be denied. All assumptions of fact have of course been made on the proofs as they now stand. At the hearing, if the facts should appear to be different, the view now expressed may be modified.

ORMSBY V. U. P. RAILWAY COMPANY.

(District of Colorado. November, 1880.)

1. NEGLIGENCE - UNNECESSARY DELAY IN TRANSPORTING FREIGHTTHAT THE COMPANY NEEDED ITS ROLLING STOCK FOR OTHER PURPOSES, NO EXCUSE FOR. It is the duty of a railroad company, engaged as a common carrier, to transport freight without unnecessary delay. A delay of twenty-four hours at a station on the way is an unnecessary delay, unless excused. That the company needed its rolling stock for the purpose of conveying passengers is not a sufficient excuse. The duty of the company is to be prepared to execute its contracts, both to carry passengers and freight. It cannot excuse itself for failure to do the one, on the ground that it was bound to do the other, and was not able to do both. 2. CONTRIBUTORY NEGLIGENCE- A FACT FOR THE JURY.- If plaintiff by his negligence materially contributed to the injury which he has sustained, he cannot recover. It is for the jury to determine whether the plaintiff, under the circumstances as shown by the proof, acted with reasonable and ordinary prudence, and whether his conduct contributed to the injury which he sustained.

3. A COMMON CARRIER CANNOT RELIEVE HIMSELF FROM RESPONSIBILITY FOR HIS OWN NEGLIGENCE BY CONTRACT WITH THE SHIPPER.— A common carrier cannot relieve himself from responsbiility for his own neg. ligence, or the negligence of his employees, by any contract that he may enter into with the shipper. A contract for shipment, in so far as it assumes to say that the railroad company shall not be liable on account of

Ormsby v. U. P. Railway Company.

any delay in the transportation of stock, is void—and also in so far as it requires the shipper to give notice of his claim before he unloads his stock. 4. "RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE STOCK" CONTAINED IN PRINTED STATEMENT APPENDED TO CONTRACT DO NOT BIND THE SHIPPER.-A printed statement appended to the contract for shipment, containing a provision that in case damages occur in transporting live stock the value shall be limited to a given amount; and that blooded animals, or animals deemed especially valuable, will be carried only on special contract, and that agents are not allowed to receive and ship such animals until a proper contract is made between the owner or consignee and the general freight agent, constitutes no part of the contract, and cannot avail as a defense. The shipper is only bound by the stipulations of the contract itself. A common carrier cannot relieve itself from responsibility by mere notice appended to or indorsed upon the contract.

5. THE AMOUNT OF DAMAGES A QUESTION FOR THE JURY.— RULES IN ARRIVING AT MEASURE of.- - As to the amount of damages, the jury are the judges. It is their duty to consider all the evidence and all the circumstances, and arrive at a just and reasonable determination. The measure of damages (in case of injury to a horse) is not what a man might have made by using him as a racer upon the track, but the reasonable market value in cash at the place where the loss occurred-the actual loss which the plaintiff sustained by reason of the injuries resulting from the negligence of the defendant.

Per HALLETT, District Judge.

6. DEMURRER-PLEADING.- A demurrer "to so much of the answer as sets up the special contract" will not be received by the court.

7. RAILROAD CONTRACT - REASONABLENESS.-A contract between a railroad company and a shipper of horses stipulated that for injuries to the animals shipped over the line of the road the owner should make a demand in writing of the agent of the company before removing them from the place of destination or from the place of delivery. Held, that this clause of the contract was not applicable where the injury was the illness of the animals, and the extent of such illness could not be known until their removal from the cars, and probably not for some little time after such removal.

G. W. Wright, for plaintiff.

J. P. Usher and H. M. & W. Teller, for defendant.

MCCRARY, Circuit Judge, charged the jury orally as follows:

GENTLEMEN OF THE JURY-This is a suit in which the plaintiff seeks to recover damages from the defendant, the VOL. II-4

Ormsby v. U. P. Railway Company.

Union Pacific Railway Company, on the ground of negligence in the transportation of a car load of horses.

The plaintiff, in order to recover, must establish two propositions of fact, and of those propositions you are the judges: first, that the railroad company was negligent in the matter of delay in transporting plaintiff's horses; second, that the result of that negligence was the damage and injury complained of. I will speak to you first only with regard to the plaintiff's case. Presently I will call your attention to the several defenses that have been set up by the defendant. You will then in the first place consider whether the plaintiff has made out prima facie a case upon which he is entitled to recover, if the defense is not established - whether the railroad company was guilty of negligence in the matter of delay, because there is no allegation that there was any negligence, except in the delay of twenty-four hours at the station of Brookville, between this and Kansas City. It is the duty of a railroad company, engaged as a common carrier, receiving freight to be transported, to carry it without unnecessary delay. A delay of twenty-four hours at a station on the way is an unnecessary delay, unless it is explained and excused by something which the law recognizes as sufficient. The excuse that the company needed its rolling stock for the purpose of carrying passengers is not a sufficient excuse. The duty of the company is to be prepared to execute its contracts, both to carry passengers and to carry freight; it cannot excuse itself for a failure to do the one, upon the ground that it was bound to do the other, and that it was not able to do both. Therefore, if there was nothing in the case except the fact of a delay of twenty-four hours at this station, and if you should find that that delay was the cause of the injury of which the plaintiff complains, he would be entitled to recover.

But it is incumbent upon the plaintiff to show by prepond erance of testimony that the damage to his stock was caused by that delay of twenty-four hours; and that is the next question for your consideration. You are to consider that ques

Ormsby v. U. P. Railway Company.

tion carefully upon the testimony that has been submitted to you; and it is for you to decide whether in the case of the horses that died, their death was caused by this delay; and as to the others, whether their sickness and the damage to them was the result of the same cause. In considering this question you will look into the evidence which has been offered before you, tending to show that the injury might have resulted from some other cause; and if you find that it did result from other cause, or in other words, if you do not find the evidence sufficient to show that it resulted from this delay, you cannot find a verdict for the plaintiff; as for example, you must consider the condition of the stock when it was shipped at Kansas City, and its condition when it was shipped in Kentucky. If you find that there was anything the matter with. the stock, or any of it, before it started from Louisville, that is a fact to be considered, and upon the testimony it is for you to say whether this delay of twenty-four hours resulted in the death of the two horses, and in the sickness and injury of the others complained of.

If you find that the delay was the cause of the injury to the stock, then your verdict will be for the plaintiff, unless you find for the defendant on some of the matters that are alleged by way of defense.

In considering, however, the first question (whether the damage resulted from this delay), you are to consider not only the condition of the stock when it was shipped at Louisville, and when it was re-shipped at Kansas City, but you are to consider the manner of the shipment that has been testified to before you the fact that the horses were put in stalls, that they were crosswise of the car, and that there were twelve of them on the car, and you are to judge, whether that manner of shipment would or would not have resulted in this sickness. and death and injury of the horses, independently of the delay of twenty-four hours at Brookville. If you conclude that

under all the circumstances the horses would have come through safely, and none of them died, and none of them