truck in which it was being carried. The opinion of the court is in these words: "Mr. Bosauquet says it is not found that the company might not have provided such trucks that no bullock could escape under any circumstances during the journey. The judge finds that the truck was reasonably fit for the conveyance of the animal. We cannot be led from that finding by a suggestion that some possible form of truck might be devised which would prevent the recurrence of such an accident. I think the finding excluded the notion of negligence on the part of the company or of the escape of the bullock from any other cause than from its own inherent vice or restiveness or frenzy and for such an injury the company are not liable."

To the same effect is Illinois Central Railroad Company v. Hall. Here the bill of lading provided that the carrier should not be liable for the hogs (the stock shipped) jumping from the car. The shippers had selected the cars to be used, which did not belong to the carrier, but to another railroad company. The hogs escaped by reason of the imperfect door fastenings of the cars. It was held that if the carrier did not know of the defects when the shippers selected the cars he could not be held for the loss.

§ 219. The consent of the owner of the stock to a particular method of shipment will not necessarily exonerate the carrier from the consequences of negligence. In Welsh v. Pittsburgh, etc., R. R. Company2 the bill of lading set forth that the shipper had examined the cars and assumed “all risk arising from any defect in the body of the car, imperfect doors and fastenings, overloading, or from vicious and restive animals, delays, or from any other cause or thing not resulting from defective trucks, wheels, or axles." Here, too, the fastenings of the doors of the cars were defective and the animals

1 58 Ill. 409. But see Oxley v. St. Louis, etc., R. R. Co., 65 Mo. 629.

210 O. St. 65. So, too, in Indianapolis, etc., R. R. Co. v. Allen (31 Ind. 394), the bill of lading including the exception "escaping." Several of the animals, hogs, escaped through

an open window in the car and it appeared that after only one had escaped the shipper had requested the conductor of the train to fix the window, which request was not complied with. The carrier was held liable.

escaped, but it was held that the carrier should have provided perfect cars and was liable, the exceptions in the contract to the contrary notwithstanding.

§ 220. Where straw or other combustible material is used for the bedding of live stock and the animals are injured by this catching fire, the carrier is liable, though the agent of the plaintiff was present at the time the objectionable material was placed in the car.1 In Pratt v. Ogdensburg, etc., Railroad Company' it is said that the fact that the shipper knew the car in which the carrier proposed to ship the goods was unsafe, does not avail the carrier as an excuse for using such cars and the Supreme Court of the United States have apparently approved of this proposition. That the owner of the stock, or his servant, has been allowed passage on the train, so that he may look after the condition of the animals, will not conclusively exonerate the carrier. Assuredly, the carrier will not be liable if the stock is lost through the carelessness of the attendant,* but the carrier cannot, on such a pretext, evade the liability for his own negligence. Even where the neglect of the attendant, or the viciousness of the animals, has contributed to the loss, the carrier may be held responsible. Causa proxima non remota spectatur. In Rhodes v. Louisville, etc., Railroad Company, loss "by viciousness of the animals" was included among the exceptions of the bill of lading. It was held that the proof of viciousness would not exonerate the carrier if the cars in which the cattle were placed were defective. In Gill v.

1 Powell . Penna. R. R. Co., 32 Pa. St. 414.

2 102 Mass. 557.

3 Ogdensburg, etc., R. R. Co. v. Pratt, 22 Wall. 133. Where an entire car is chartered to a person for his cattle, and he (the shipper) has charge of the loading of the car, the company is not liable for a damage sustained by improper loading. East Tenn. R. R. Co. v. Whittle, 27 Georgia, 535. If the car is defective the company is liable on the contract to hire, but not as a carrier.

4 Wilson v. Hamilton, 4 O. St. 723.

Smith v. New Haven, etc., R. R. Co., 12 Allen (Mass.), 531; Conger v. Hudson River R. R. Co., 6 Duer (N. Y.), 375; Harris v. Northern Indiana R. R. Co., 20 N. Y. 232; Ohio, etc., R. R. Co. v. Dunbar, 20 Ill. 623; Hall v. Renfro, 3 Metc. (Ky.) 51; Wilson v. Hamilton, 4 O. St. 723.

6 Cases foregoing.
79 Bush (Ky.), 688.

Manchester, etc., Railway Company1 the carrier was by contract released from liability for loss or injury in the delivery of the cow shipped by plaintiff, occasioned by "kicking, plunging, or restiveness." When the cow arrived at the place of destination a servant of the defendants was about to unfasten the car when he was warned not to do so. He persisted. The animal ran out and after rushing about the yard violently for some time ran upon the railway tracks and was killed by a passing train. The court held that the carrier was liable.

§ 221. The carrier is bound to provide against escapes by seeing that the stock is properly secured. Where a dog was delivered to be carried, but not being properly fastened, slipped the noose about his neck and broke loose, the carrier was held responsible and Lord ELLENBOROUGH said that since the carrier had the means of seeing that the dog was insufficiently tied, he was bound to lock up the animal or take other proper means to secure it.2

In an extreme case in Mississippi the defendant was the keeper of a public ferry, while the plaintiff was the owner of a stage coach and horses, which were being transferred across the ferry for hire. The driver had vacated his seat and fastened the lines. The horses became restive and ran out of the boat into the river. The carrier was held liable. This is, however, in the line of the case of Porterfield v. Brooks, in Tennessee, where it was said that if a horse escape from the fastenings on board a steamboat and be lost in the river, the owners of the boat are responsible, for the horse must have been negligently fastened or the loss would not have occurred, and prima facie

'L. R. 8 Q. B. 186.

2 Stuart v. Crawley, 2 Stark. 323. In Richardson v. Northeastern Ry. Co., L. R. 7 C. P. 75, this case is distinguished. Here the plaintiff had shipped a dog, secured, as is customary, by a collar and strap, but the animal had, nevertheless, broken loose, and escaped. Willis, J., held that the defendants were not liable, and that the case differed from Stuart v.

Crawley. First, because in the earlier case the defendants were common carriers, and in the case at bar they were not. Second, because in the earlier case the carrier had the means of seeing that the animal was insufficiently secured, whereas here the mode of securing the dog was that ordinarily adopted.

3 Powell v. Mills, 37 Miss. 691. 48 Humph. (Tenn.) 497.

this negligence is attributable to the owners of the boat or their

servants.

The carrier's liability will, however, not be assumed.1 In Kendall v. London, etc., Railway Company the plaintiff delivered to the defendants a horse to be carried by their railway. At the end of the journey the horse was found to be injured. No accident had happened to the train and the defendants were guilty of no negligence. The cause of the injuries was unknown, except that from their nature they appeared to have been caused by the horse getting down upon the floor of the horse box. The horse was quiet and accustomed to travel by rail. It was held by a divided court that the defendants were not liable since it was to be inferred that the injuries resulted from the proper vice of the animal.

§ 222. The carrier is not liable for the loss or injury to live stock arising from the negligence of the owner in not being at the place of destination to receive the animals. Where a horse was sent by railway and the sender signed a contract in the following terms: "Mr. Wise paid for one horse 12s. 6d., Newbury to Windsor. Notice The directors will not be answerable for damage done to any horse conveyed by this railway," and the horse arrived at Windsor station in safety, but the owner did not appear to claim it and it was forgotten and left tied in a horse box in an exposed situation for twenty-four hours and was injured by the neglect, it was held that though the company was, to a certain extent, blamable, they were freed under the contract.3

The case of Nugent v. Smith' has been already commented upon. Here the loss of a mare on shipboard was due partly to the tossing of the vessel and partly to the struggles of the frightened animal. The court below, Mr. Justice BRET, delivering the judgment, refused to consider this loss the act of God, or "such a vice in the inherent nature of this particular mare as would absolve the defendant," but on appeal this judgment was

1 Morrison v. Construction Co., 44 Wisc. 405, and cases following.

2 L. R. 7 Ex. 373.

3 Wise v. Great Western Ry. Co., 25 L. J. Ex. 258.

4 L. R. 1 C. P. D. 19, 423.

reversed and the carrier was exonerated. In Gabay v. Lloyd,' where horses were being transported by water and during a severe storm, they broke down the partitions separating them and by kicking severely injured each other. This was held to fall within the exception "perils of the sea."

§ 223. There are numerous rulings to the effect that "fire" is not to be considered as among the causes of loss covered by the common law exception, "the act of God," except in the one case of fire caused by lightning. Neither is it included in the more comprehensive exceptions usually expressed in bills of lading as "unavoidable dangers," "perils of the sea," "perils of the river (or road),” etc. It is therefore necessary that to free the carrier from responsibility for this sort of loss an express exception to that effect should be introduced into the bill of lading."

14.ի. Aberdeen, 5 B. & Ald. 107.

1 3 B. & C. 793; Lawrence v. Bulkley v. Naumkeag Cotton Co., 24 Howard, 386; McCall v. Brock, 5 Strob. (S. C.) 119. Neither is fire caused by the machinery of the vessel. Hale v. New Jersey Steam Nav. Co., 15 Conn. 539; or by the bursting of a cask containing chloride of lime. Brousseau v. The "Hudson," 11 La. Ann. Rep. 427.

2 The owner of a horse, injured while in the carrier's hands, may maintain an action against the carrier for the injury, notwithstanding he (the shipper) has not given him (the carrier) notice of the injury, or offered the horse to him to be cared for. Evans v. Dunbar, 117 Mass. 546.

Story on Bailments, §§ 511, 528; Abbott on Shipping, *p, 389 (7th Am. ed.) and cases cited; Forward v. Pittard, 1 T. R. 27; Hyde v. Trent. Nav. Co., 5 ib. 389; Thorogood v. Marsh, 1 Gow. N. P. C. 105; Gatliffe v. Bourne, 4 Bing. N. C. 314; Parsons v. Monteath, 13 Barb. (N. Y.) 353; Miller v. Steam Nav. Co., 10 N. Y. 431; McArthur v. Sears, 21 Wend. (N. Y.) 190 ; Hall v. Cheney, 36 N. H. 26 Moore v. Mich. Cent. R. R. Co., 3 Mich. 23, Cox v. Peterson, 30 Ala. 608; Chevallier v. Straham, 2 Tex. 115; Patton v. Magrath, Dudley (S. C.), 159.

Fire started by the bursting of a steam boiler is not the "act of God."

4 Union Mutual Ins. Co. v. Indianapolis, etc., R. R. Co., 1 Disney ((.), 480.

5 Merril v. Arey, 3 Ware (U. S. D. C.), 215, 17 Fed Cases, 210.

Cox v. Peterson, 30 Ala. 608; Gilmore v. Carman, 1 S. & M. (Miss.) 303; Garrison v. Memphis Ins. Co., 19 Howard, 312; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 ib. 344.

In Sampson v. Gazzam, 6 Porter (Ala.), 123, it was said that it is admissible to prove that the phrase "dangers of the river" by custom and general understanding includes a loss by fire. See also Hibler v. MeCartney, 31 Ala. 501.

S.

7 Faulkner v. Hart, 82 N. Y. 413; C. 37 Am. Rep. 574, reversing