call for the goods for several days after arrival is
relied on, the plea will be insufficient if it alleges
no duty on plaintiff so to do, nor any notice of the
arrival, nor any facts that would relieve defendant
from giving notice.96 A plea in an action against
a carrier for failure to deliver freight within a rea-
sonable time which does not show that the cars
referred to therein contained the freight, or that
the shipper was responsible for the matters set up,
and which does not show that the matters alleged
might not have had reference to a different ship-
nor where and under what circum-
stances an understanding, if any, in
respect to delays was entered into;
or any facts that would put plain-
tiffs on notice of the very issues they
would be expected to meet, it was not
error to sustain a special demurrer
thereto).

[a] Thus, if special contracts exempt the carrier from liability for noncompliance with a contractual requirement of notice of damages, the contract, if relied on, must be pleaded. Wall v. Northern Pac. R. Co., 50 Mont. 122, 145 P 291.

[b] Failure to give notice of damage. (1) A carrier, wishing to avail itself of the defense that a contract of shipment requires notice of a claim for damages within a specified time, must set it up in its answer, and although the contract is made an exhibit to the complaint, the defense cannot be raised by demurrer which does not reach exhibits attached to pleadings in cases at law. St. Louis, etc., R. Co. v. Cumbie, 101 Ark. 172, 141 SW 939. (2) To enable a carrier to avail itself of the rule applicable where a shipment of live stock is accompanied by a caretaker selected by the shipper, it must especially plead and prove such fact. Hunt v. Chicago, etc., R. Co., 95 Nebr. 746, 146 NW 986. (3) If defendant relies on a contract limiting liability for loss from delay caused by the shipper, a plea alleging such limitation, and that the damage was occasioned by delay or changes in weather, must negative the carrier's negligence as the cause of the delay. Western R. Co. v. Hart, 160 Ala. 599, 49 S 371.

96. State Western R. Co. v. Hart, 160 Ala. 599, 49 S 371.

97. St. Louis, etc., R. Co. v. Cash Grain Co., 161 Ala. 332, 50 S 81. 98. Cleveland, etc., R. Co. v. Heath, 22 Ind. A. 47, 53 NE 198.

99. See Pleading [31 Cyc 670 et seq].

[a] Illustrations.-(1) In an action ex contractu against a carrier for delay in the shipment of goods, where the complaint declared on an express contract, the bill of lading evidencing the contract should be put in evidence or accounted for and its terms established in order to warrant a recovery, and a mere receipt for the shipment is not admissible in evidence and will not support a recovery. Southern R. Co. v. Langley, 184 Ala. 524, 63 S 545. (2) In an action against a carrier for delay in transporting live stock, proof that the carrier's agent induced plaintiff to deliver the stock in expectation of shipment in a very short time was improper, where no such issue was made by the pleadings. St. Louis, etc., R. Co. v. Vaughan, 84 Ark. 311, 105 SW 573. (3) Where the only cause of action declared on in the petition was defendant railroad's negligent failure to transport plaintiff's hogs promptly, plaintiff could not recover for injuries to the hogs while being loaded or unloaded by defendant's employees. Hunter v. St. Louis Southwestern R. Co., 147 Mo. A. 28, 126 SW 254. (4) Where plaintiff's cause of action for damages for a carrier's delay in transportation of cattle was based entirely on the alleged breach of a carrier's obligation to transport the cattle within a reasonable time, evidence that a por

ment, is bad.97 It has been held that, under a general denial, the carrier has the right to show that the delay in fact occurred on a connecting line for which it was not liable.98

[§ 427] 5. Issues, Proof, and Variance. In accordance with the general principles applicable to civil actions generally, the pleadings and the proof must correspond.99 The evidence offered must be limited to the issues made by the pleading, and a material variance between the pleadings and the proof will be fatal to a recovery.1

tion of the delay was caused by the | material variance.—(1) A declaration
carrier's breach of a parol contract
to furnish cars sanded and bedded,
so that they might be immediately
used, was inadmissible. Burgher v.
Wabash R. Co., 139 Mo. A. 62, 120
SW 673. (5) Where, in an action for
delay in transportation of cattle,
plaintiff based his right to recover in
his pleading on defendant's negli-
gence in delaying the train at numer-
ous points, objections that the train
was the only train on which he was
allowed to ship them, when in fact
defendant had other trains that made
a faster schedule, and that the train
did not run as fast as it should, and
that its schedule was unreasonably
slow, were not within the issues.
Ecton v. Chicago, etc., R. Co., 125 Mo.
A. 223, 102 SW 575. (6) Where the
complaint in an action for injuries
sustained by delay in the transporta-
tion of a trunk contains no allega-
tions of physical injury to the con-
tents of the trunk, evidence as to
physical deterioration of the con-
tents caused by the delay is not ad-
missible. Lichterman v. Barrett, 157
NYS 882. (7) In an action against
a railroad for damages to a shipment
of hogs, where there was no allega-
tion that the hogs were injured by
reason of delay, evidence that the
shipment was not made as soon as
agreed on was irrelevant and im-
properly admitted. Missouri, etc., R.
Co. v. Rogers, (Tex. Civ. A.) 141 SW
1011. (8) In an action by shippers
of live stock for delay in transit,
where the petition alleged only that
the cattle should have arrived on a
certain date, but did not, whereby the
shippers were compelled to hold them
over for the next market, proof of an
additional shrinkage in weight after
arrival, and of the decline in the
market at which the cattle were sold,
was inadmissible for want of basis in
the pleadings. International, etc., R.
Co. v. Landa, (Tex. Civ. A.) 183 SW
384. (9) In an action against a car-
rier for injury to live stock from
delay in transportation, an allegation
in the petition that the injury re-
sulted from "delay, rough handling,
and that the horses were choused
around while at T," was not broad
enough to admit testimony that at
one of the stations defendant's serv-
ants "hammered and knocked around
and put four bolts in the back end
of the car," and that the "noise and
hammering made the horses
less and nervous," since the word
"choused" means no more than a
trick, a sham, or a cheat. Gulf, etc.,
R. Co. v. Peacock, 60 Tex. Civ. A. 250,
128 SW 463. (10) The allegation in
the declaration in an action by a
purchaser from a consignee for the
delay of the carrier in the delivery
of freight, as to when the purchaser
became the owner of the freight by
payment therefor and delivery of the
bill of lading, is not descriptive, and
the purchaser is not confined to the
date, although to make out a case he
must show that the freight was in-
jured after he became the owner
thereof, and while the carrier sus-
tained the relation of carrier to him.
Johnson v. Central Vermont R. Co.,
84 Vt. 486, 79 A 1095.

in an action against a carrier which alleges that the carrier received from the shipper potatoes for transportation for a reasonable reward from one point to another point, and that the carrier so negligently conducted itself that by reason thereof the potatoes were lost, justifies evidence of unreasonable delay in the transportation of the goods, and that such neglect caused the shipper the loss complained of. Norfolk Truckers' Exch. v. Norfolk Southern R. Co., 116 Va. 466, 82 SE 92. (2) A complaint in an action against a carrier for delay in transporting cattle, which alleges that, on account of the negligent delay in transportation, the cattle shrank in weight and depreciated in price, and that plaintiff was informed that during the delay the market price for cattle declined in price, is sufficient to warrant the admission of evidence of depreciation in the market price of cattle. especially in the absence of an effort to make the complaint more definite and certain by demurrer or otherwise. Russell v. Chicago, etc., R. Co., 37 Mont. 1, 94 P 488, 501. (3) A complaint against a carrier for negligence in transporting sheep that the sheep shrank in flesh and lost in weight, to the damage of the shipper, is sufficient to admit evidence of the effect excessive shrinkage had on the mutton for food, and the effect thereof on the market price of the sheep, the fact that the sheep unduly shrank in flesh and lost in weight not being controverted. Groot v. Oregon Short Line R. Co., 34 Utah 152, 96 P 1019. (4) Where a petition alleged that the cattle in controversy were negligently delayed, and in consequence lost weight and suffered in appearance, it was not error to permit evidence that the cattle got down while the cars were standing on the sidetracks, over an objection that there was no allegation of such fact. "The testimony probably tended to support the latter allegation." St. Louis, etc., R. Co. v. Alverson, 52 Tex. Civ. A. 321, 322, 114 SW 673. (5) Where a contract was for the shipment of cattle from Omaha to Callaway, as pleaded in the petition for injuries caused by delay, a contention that the evidence shows the delay, if any occurred on the shipment from Kearney, an intermediate rest-point, to Callaway, was purely specious, as any unreasonable delay at any intervening point was sufficient to constitute the cause of action. Union Pac. R. Co. v. Nelson, 76 Nebr. 72, 106 NW 1036. (6) A purchaser from a consignee who obtains the bill of lading stands as consignee, and there is no variance between the declaration in an action for delay which alleges that the freight was consigned to the purchaser and the evidence disclosing that the freight was consigned to the consignee with directions to notify the purchaser, a variance being a material difference. Johnson v. Central Vermont R. Co., 84 Vt. 486, 79 A 1095. (7) In an action against a railway company for breach of a contract to carry a dead body, any variance between the allegation that the company agreed to ship the remains within a reasonable time, to wit, five days, and plaintiff's testimony that defendant's agent told

1. See Pleading [31 Cyc 670 et seq]; and cases infra this and supra note 99.

[a] Evidence admissible and im

[§ 428] 6. Evidence2-a. Burden of Proof—(1) Delivery to Carrier for Transportation. In an action to recover damages from an unreasonable delay in transportation of freight, the burden is on the shipper in the first instance to show delivery of the freight to the carrier for delivery at a certain destination.3

5

6. Stevens V. St. Louis Southwestern R. Co., (Tex. Civ. A.) 178 SW 810.

[§ 429] (2) Failure to Deliver within Reasonable Time and Matters of Excuse (a) The General Rule. The burden is on the shipper to show that the carrier failed to deliver the goods within a reasonable time.1 In other words, it devolves on the shipper to prove that a longer time was actually consumed than was necessary for the purpose. Also, if the carrier was authorized to stop the goods in transit for milling in transit purposes, it devolves on the shipper to show that the unreasonable delay in transportation was not due to that cause." However, when evidence of unusual delay is adduced, a her that the remains would be delivered within four days was immaterial, where she testified repeatedly that the agent promised delivery in five days, including the day the contract was made, and where the remains were never shipped by defendant. Missouri, etc., R. Co. Linton, (Tex. Civ. A.) 141 SW 129. (8) Where plaintiff sued for breach of a carrier's common-law duty to transport stock without delay, proof that the stock was transported under contract did not constitute a fatal variance. Wall v. Northern Pac. R. Co., 50 Mont. 122, 145 P 291 [foll Nelson v. Great Northern R. Co., 28 Mont. 297, 72 P 642]. (9) For other illustrative cases see Sanders v. Atlantic Coast Line R. Co., 79 S. C. 219, 60 SE 526; Ft. Worth, etc., R. Co. v. Whiteside, (Tex. Civ. A.) 141 SW 1037; Galveston, etc., R. Co. v. Johnson, (Tex. Civ. A.) 133 SW 725; San Antonio, etc., R. Co. v. Griffith, (Tex. Civ. A.) 70 SW 438; Johnson v. Central Vermont R. Co., 84 Vt. 486, 79 A 1095.

V.

[b] There was a variance between an allegation that the damage was caused from delay in transportation and proof that it arose from lack of refrigeration, which was not alleged. Missouri, etc., R. Co. v. McLean, 55 Tex. Civ. A. 130, 118 SW 161.

2. In actions for loss or injury see infra §§ 568-600.

3. Russell Grain Co. v. Wabash R. Co., 114 Mo. A. 488, 89 SW 908.

4. Ark.-St. Louis Southwestern R. Co. v. Burnett, 174 SW 1165; Kansas City Southern R. Co. v. Mabry, 112 Ark. 110, 165 SW 279; Kansas City Southern R. Co. v. Morrison, 103 Ark. 522, 146 SW 853.

Ill. Leonard Seed Co. v. Cleveland, etc., R. Co., 162 Ill. A. 190. Minn.-Gamble-Robinson

Commn.

Co. v. Northern Pac. R. Co., 107 Minn. 187, 119 NW 1068.

Nebr.- Cleve v. Chicago, etc., R. Co., 77 Nebr. 166, 108 NW 982, 124 AmSR 837, 15 AnnCas 33; Johnston v. Chicago, etc., R. Co., 70 Nebr. 364, 97 NW 479.

N. C.-Watson v. Atlantic Coast Line R. Co., 145 N. C. 236, 59 SE 55. Pa-Davenport v. Pennsylvania R. Co., 10 Pa. Super. 47.

[a] Thus to sustain a verdict for a shipper of live stock for loss from shrinkage and the condition of the stock after arrival, because of delay in transportation, the shipper must prove a negligent delay. St. Louis Southwestern R. Co. V. Burnett, (Ark.) 174 SW 1165.

5. Leonard Seed Co. v. Cleveland, etc., R. Co., 162 Ill. A. 190; Johnston v. Chicago, etc., R. Co., 70 Nebr. 364, 97 NW 479; Missouri, etc., R. Co. v. Dement, (Tex. Civ. A.) 115 SW 635 (where it was said that the mere fact that the evidence shows that a designated number of days elapsed during the transportation does not authorize an assumption that there was an unreasonable delay).

7. U. S.-The Alice, 12 Fed. 496.
Ala.-Richmond, etc., R. Co. V.
Trousdale, 99 Ala. 389, 13 S 23, 42
AmSR 69; Louisville, etc., R. Co. v.
Cheatwood, (A.) 68 S 720, 721 [cit
Cyc].

Can.-Auger v. C. N. Q. R. Co., 20 RevdeJur 585.

[a] Reason for rule.-(1) This is on the principle that, "where it is necessary to make a character of proof which, by reason of the circumstances surrounding the case, is exclusively within the knowledge of one or the other of the parties, the burden would be upon the party possessed of that knowledge to make the proof." Jolliffe v. Northern Pac. R. Co., 52 Wash. 433, 436, 100 P 977. (2) "If there is an unreasonable deand there is a cause for it which would in law excuse, the facts are peculiarly within the knowledge of the defendant carrier and its agents, and the rule is that it is incumbent upon the carrier to plead and prove it." Texas, etc., R. Co. v. Martin, (Tex. Civ. A.) 175 SW 707, 708.

III.-Galean, etc., R. Co. v. Rae, 18
Ill. 488, 68 AmD 574; Perkins V.
Cleveland, etc., R. Co., 183 11. A. 531;
Wetzel v. Cleveland, etc., R. Co., 168
Ill. A. 596; Woods v. Toledo, etc., R.
Co., 159 I. A. 209; Bacon v. Cleve-lay,
land, etc., R. Co., 155 Ill. A. 40; Shoot
v. Cleveland, etc., R. Co., 145 Ill. A.
532; St. Louis Merchants Bridge Ter-
minal R. Co. v. Tassey, 122 Ill. A.
339.

Ind.--Pittsburgh, etc., R. Co. V.
Mitchell, 175 Ind. 196, 91 NE 735, 93
NE 996; Cleveland, etc., R. Co. V.
Heath, 22 Ind. A. 47, 53 NE 198.

Iowa. Tiller v. Chicago, etc., R.
Co., 112 NW 631; St. Clair v. Chicago,
etc., R. Co., 80 Iowa 304, 45 NW 570;
McCoy v. K. & D., etc., R. Co., 44
Iowa 424.

Ky.-Cincinnati, etc., R. Co. V.
Myers, 165 Ky. 700, 178 SW 1038;
Southern R. Co. v. Bailey, 80 SW 786,
26 KyL 53; Louisville, etc., R. Co. v.
Bell, 13 KyL 393.

Me.-Johnson v. New York, etc., R.
Co., 111 Me. 263, 88 A 988.

Md.-Pennsylvania R. Co. v. Clark,
118 Md. 514, 85 A 613.

Nebr. Nelson v. Chicago, etc., R.
Co., 78 Nebr. 57, 110 NW 741; Den-
man v. Chicago, etc., R. Co., 52 Nebr.
140, 71 NW 967.

N. Y.-Harris v. Northern Indiana
R. Co., 20 N. Y. 232; Place v. Union
Express Co., 2 Hilt. 19.

N. C.-Parker v. Atlantic Coast
Line R. Co., 133 N. C. 335, 45 SE 658,
63 LRA 827.

Okl.-St. Louis, etc., R. Co. v. Shepard, 40 Okl. 589, 139 P 833; St. Louis, etc., R. Co. v. Peery, 40 Okl. 432, 138 P 1027.

Pa.-Joynes v. Pennsylvania R. Co., 235 Pa. 352, 83 A 1016, AnnCas1913D 964.

Tex.-Missouri, etc., R. Co. v. Stark Grain Co., 103 Tex. 542, 131 SW 410; Tex., etc., R. Co. v. Martin, (Civ. A.) 175 SW 707; Rodgers v. Texas, etc., R. Co., (Civ. A.) 172 SW 1117; Texas, etc.,

R. Co. v. Dunford, (Civ. A.) 152 SW 1129; Chicago, etc., R. Co. v. Gillett, (Civ. A.) 99 SW 712; Wells, etc., Express v. Fuller, 13 Tex. Civ. A. 610, 35 SW 824.

Vt.-Mann v. Birchard, 40 Vt. 326,
94 AmD 398.

Wash.-Jolliffe V. Northern Pac.
R. Co., 52 Wash. 433, 100 P 977.

W. Va.-Woodford V. Baltimore,
etc., R. Co., 70 W. Va. 195, 73 SE
290; Bosley V. Baltimore, etc., R.
Co., 54 W. Va. 563, 570, 46 SE 613.
66 LRA 871 [quot Cyc]; Baltimore,
etc., R. Co. v. Morehead, 5 W. Va. 293.

Wis.-Ayres v. Chicago, etc., R. Co., 71 Wis. 372, 37 NW 432, 5 AmSR 226.

[b] Where an unusual rush of business is relied on by the carrier as an excuse for the delay, (1) the burden is on the carrier to show the existence of such conditions. McMillan v. Chicago, etc., R. Co., 147 Iowa 596, 124 NW 1069; Joynes v. Pennsylvania R. Co., 235 Pa. 232, 83 A 1016, AnnCas1913D 964. (2) In other words, the burden is on the carrier to show every fact essential to the validity of its excuse. Atchison, etc., R. Co. v. Word, (Tex. Civ. A.) 159 SW 375.

[cl A carrier, although accepting a shipment under a contract, "subject to delay," has the burden of showing the exercise of due diligence to avoid delay in carrying and delivering the goods. Parker v. Atlantic Coast Line R. Co., 131 N. C. 827, 43 SE 1005, 133 N. C. 335, 45 SE 658, 63 LRA 827. Compare Sherwood v. New York, etc., R. Co., 86 Hun 556, 33 NYS 771 (holding that, if plaintiff declares on breach of contract by which he has himself assumed the risk of damage resulting from delay, the burden of alleging and of proving that the delay was occasioned by defendant's negligence is on plaintiff).

8. Cleve v. Chicago, etc.. R. Co., 77 Nebr. 166, 108 NW 982, 124 AmSR 837, 15 AnnCas 33.

9. Smith v. Missouri, etc., R. Co., (Mo. A.) 183 SW 701; Bailey v. Chicago, etc., R. Co., (Mo. A.) 182 SW 1034; Patterson v. Chicago, etc., R. Co., (Mo. A.) 182 SW 1034; Cunningham v. Chicago, etc., R. Co., (Mo. A.) 182 SW 1033; Sikes v. St. Louis, etc., R. Co., 190 Mo. A. 181, 176 SW 255; Dalton v. St. Louis, etc., R. Co., 187 Mo. A. 691, 173 SW 77; Hunt v. St. Louis, etc., R. Co., 187 Mo. A. 639, 173 SW 61; Weesen v. Missouri Pac. R. Co., 175 Mo. A. 374, 162 SW 304; Gregory v. Chicago, etc., R. Co., 174 Mo. A. 550, 160 SW 830; Hickey v. Chicago, etc.. R. Co., 174 Mo. A. 408, 160 SW 24; Muir v. Missouri, etc.. R. Co.. 168 Mo. A. 542. 154 SW 877; Unionville Produce Co. v. Chicago. etc, R. Co., 168 Mo. A. 168, 153 SW 63; Ridgeway v. Missouri, etc., R.

tract,17 and also to show that it is reasonable.18 So the burden is on the carrier to show that the shipper failed to comply with the requirement.19

[§ 433] (5) Special Damages. One who seeks to recover special damages for breach of a contract of carriage must show that such damages were within the contemplation of both parties to the contract;2 otherwise he can recover only such damages as in the usual course of things flow from the breach.21 And he must show notice to the carrier at the time of the shipment of special circumstances from which said damages might arise.22

Mo. A. 697, 112 SW 1002; Bushnell
v. Wabash R. Co., 118 Mo. A. 618, 94
SW 1001.

13. Gregory v. Chicago, etc., R.
Co., 174 Mo. A. 550, 160 SW 830;
Muir v. Missouri, etc., R. Co., 168 Mo.
A. 542, 154 SW 877. ·

[§ 432] (4) Shipper's Failure to Give Notice of Damages. If the carrier relies on a contract requiring the shipper to give notice of claim for damage, the burden is on the carrier to prove such conCo., 161 Mo. A. 260, 143 SW 532; Lay | Gilbert v. Chicago, etc., R. Co., 132 v. Chicago, etc., R. Co., 157 Mo. A. 467, 138 SW 884; Haase v. Merchants' Despatch Transp. Co., 143 Mo. A. 42, 122 SW 362; Hahn v. St. Louis, etc., R. Co., 141 Mo. A. 453, 125 SW 1185; Clark v. St. Joseph, etc., R. Co., 138 Mo. A. 424, 122 SW 318; Gilbert v. Chicago, etc., R. Co., 132 Mo. A. 697, 112 SW 1002; Wernick v. St. Louis, etc., R. Co., 131 Mo. A. 37, 109 SW 1027; Ecton v. Chicago, etc., R. Co.. 125 Mo. A. 223, 102 SW 575; Ratliff v. Quincy, etc., R. Co., 118 Mo. A. 644, 94 SW 1005; Bushnell v. Wabash R. Co., 118 Mo. A. 618, 94 SW 1001; Wright v. Chicago, etc., R. Co., 118 Mo. A. 392, 94 SW 555; McCrary v. Chicago, etc., R. Co., 109 Mo. A. 567, 83 SW 82; Cunningham v. Wabash R. Co., 79 Mo. A. 524.

"It must, therefore, be taken as the established law of this state that, when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff [that] the party who founds his cause of action upon negligence must be prepared to establish the assertion by proof [and] the burden of proof is upon him from the beginning to the end of the case.' Witting v. St. Louis, etc., R. Co., 101 Mo. 631, 639, 14 SW 743, 20 AmSR 636, 10 LRA 602.

[a] Thus proof that plaintiff's shipment of cattle was delayed for some time at a division point and did not arrive at the destination until about ten hours later than the usual time will not, without anything else establish negligent delay. Cunningham v. Chicago, etc., R. Co., (Mo. A.) 182 SW 1033.

10. Holland v. Atchison, etc., R. Co., 133 Mo. A. 694, 114 SW 61; Ecton v. Chicago, etc., R. Co., 125 Mo. A. 223, 102 SW 575.

11. Gregory v. Chicago, etc., R. Co.. 174 Mo. A. 550, 160 SW 830. 12. Hunt v. St. Louis, etc., R. Co.. 187 Mo. A. 639, 173 SW 61; McFall v. Chicago, etc., R. Co., 181 Mo. A. 244, 168 SW 344; McFall v. Chicago. etc., R. Co., 181 Mo. A. 142, 168 SW 341; Muir v. Missouri, etc.. R. Co., 168 Mo. A. 542, 154 SW 877; Unionville Produce Co. v. Chicago, etc., R. Co., 168 Mo. A. 168, 153 SW 63; R. E. Funsten Dried Fruit, etc., Co. V. Toledo. etc. R. Co., 163 Mo. A. 426, 143 SW 839; Lay v. Chicago, etc.. R. Co., 157 Mo. A. 467, 138 SW 884: Decker v. Missouri Pac. R. Co., 149 Mo. A. 534, 31 SW 118; Holland v. Chicago, etc., R. Co., 139 Mo. A. 702, 123 SW 987; Clark v. St Joseph, etc.. R. Co., 138 Mo. A. 424, 122 SW 318; Parsons-Applegate Co. V. Louisville R. Co., 136 Mo. A. 494, 118 SW 101;

14. L. (1913) pp 177, 178.

15. Rissler V. Missouri Pac. R. Co., (Mo. A.) 183 SW 676; Riddler v. Missouri Pac. R. Co., 184 Mo. A. 709, 171 SW 632 (holding that a delay of nearly double the usual time for a shipment of live stock for immediate sale makes out a prima facie case of negligent delay).

16. Baltimore, etc., R. Co. V. Whitehill, 104 Md. 295, 64 A 1033.

17. Wall v. Northern Pac. R. Co., 50 Mont. 122, 145 P 291.

18. Wall v. Northern Pac. R. Co., 50 Mont. 122, 145 P 291.

24

St.

82

[§ 434] b. Admissibility—(1) In General. In an action for delay in transportation of goods, the time ordinarily required for carriage, preparations by the carrier, the freight dispatched, the character of the freight, the information given to the shipper, or particular reasons for speedy transportation and delivery, and kindred circumstances are admissible.23 [ 435] (2) Negligence. The admissibility of evidence to show negligence in actions of this character is controlled by the rules governing proof of negligence generally. On the question of defendthat, while awaiting a through train, the cattle were unloaded into pens so maintained that the cattle could not be fed there, it was competent for plaintiff to show that he notified defendant's agent in advance of his intended shipment of cattle, as bearing on defendant's negligence in failing to arrange the schedule so that the detention of the cattle at the pens would be unnecessary. Louis, etc., R. Co. v. Crowder, Ark. 562, 103 SW 172. (2) Where bills of lading for cotton bound the railroad only to transport with as reasonable dispatch as its general business would permit, evidence in an action against the road by the shipper for delay in delivering the goods, that a subsequent shipment reached the same destination prior to the first shipment, was competent in respect to delay on defendant's part and in refutation of its plea that an unprecedented amount of freight prevented it from hauling the cotton more expeditiously. Southern R. Co. v. Cofer, 149 Ala. 565, 43 S 102. (3) Το establish negligence, it was proper to show that a carrier, sued for delay in delivering live stock, had never before taken a train out without a shipment, when part of it was loaded and the remainder in process of loading. Moss v. Missouri, etc., R. Co., 153 Mo. A. 602, 134 SW 1070. (4) In an action for damages to cattle by delay of a connecting carrier in shipment, evidence that the cattle were forwarded by such connecting carrier on the first freight train on its road leaving the junction point after the cattle had been received, and that the same were carried as soon as such connecting carrier's road was open to such train, was admissible on the question of negligence. Chicago, etc., R. Co. v. Kapp, 37 Tex. Civ. A. 203, 83 SW 233. (5) In an action against a carrier for delay in the transportation of a corpse, evidence that defendant had given a transfer agent transferring it from the depot of a connecting line a receipt describing it and showing its destination, that it had been seen while on a truck near the door of the express car before the train left, and that after the train had gone the station agent telegraphed the conductor that the corpse had been left and would promptly be forwarded, was sufficient to sustain a verdict for plaintiff for the damages suffered by such delay. St. Louis, etc.. R. Co. v. French, 23 Tex. Civ. A. 511, 57 SW 56.

19. Bennett V. Chicago, etc., R.
Co., 151 Mo. A. 293, 131 SW 770:
Brown v. St. Louis, etc., R. Co., 135
Mo. A. 624, 117 SW 112.

20. Missouri, etc., R. Co. v. Foote,
(Okl.) 149 P 223; Foster v. Interna-
tional, etc., R. Co., (Tex. Civ. A.)
175 SW 762.

21. Missouri, etc., R. Co. v. Foote, (Okl.) 149 P 223.

22. Towles v. Atlantic Coast Line R. Co., 83 S. C. 501, 65 SE 638; Green Co. v. Atlantic Coast Line R. Co., 83 S. C. 498, 65 SE 639; Shieder v. Southern R. Co., 83 S. C. 455, 65 SE 631; Missouri, etc., R. Co. v. Sproles, (Tex. Civ. A.) 92 SW 40.

[a] Thus in an action for delay in a shipment of cotton, where it is sought to recover damages from being obliged to purchase cotton on a rising market to fill plaintiffs' contract, the burden was on them to show notice to the carrier at or before making the contract of shipment of the special conditions rendering such damages a natural and probable result of the breach under circumstances showing that the contract was to some extent based on such conditions. Dorrance v. International, etc., R. Co., (Tex. Civ. A.) 126 SW 694.

23. Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410, 77 SE 647, 45 LRANS 18. And see infra §§ 435-438.

24. See Negligence [29 Cyc 606]; and St. Louis, etc., R. Co. v. Easley, 42 Tex. Civ. A. 391, 94 SW 206; Ft. Worth, etc., R. Co. v. Hadley, 38 Tex. Civ. A. 599, 86 SW 932; Missouri, etc., R. Co. v. Jarrell, 38 Tex. Civ. A. 425, 86 SW 632.

[a] Illustrations.-(1) Where in an action against a railroad for damages from negligent delay in transporting plaintiff's cattle it appeared

[b] Evidence that the engine was overloaded and in a defective condition, which facts were known to defendant, is admissible as showing

28. Pecos, etc., R. Co. v. Dinwiddie, (Tex. Civ. A.) 146 SW 280; Atchison, etc., R. Co. v. Davidson, (Tex. Civ. A.) 127 SW 895, (holding that in an action for injuries to cattle by delay in shipment during the year 1907 evidence that during the year 1902 similar shipments were usually made in from thirty to thirty-six hours was not inadmissible for remoteness).

29. Pecos, etc., R. Co. v. Gray, (Tex. Civ. A.) 145 SW 728.

30. Texas, etc., R. Co. v. Cauble, (Tex. Civ. A.) 168 SW 369.

31. Harper Furniture Co. Southern Express Co.. 144 N. C. 639, 57 SE 458, 12 AnnCas 924.

32. Hennigh v. Cleveland, etc., R. Co., 143 Ill. A. 283; Houston, etc., R. Co. v. Roberts, 101 Tex. 418, 108 SW 808 [overr Texas, etc., R. Co. v. Walker, 43 Tex. Civ. A. 278, 95 SW 743; Texas, etc., R. Co. v. Ellerd, 38 Tex. Civ. A. 596, 87 SW 362]; Kansas City, etc., R. Co. v. Beckham, (Tex. Civ. A.) 152 SW 228; St. Louis, etc., R. Co. v. Hurst, (Tex. Civ. A.) 135 SW 599; St. Louis, etc.. R. Co. v. May, 53 Tex. Civ. A. 257, 115 SW 900; Galveston, etc., R. Co. v. Noelke, (Tex. Civ. A.) 110 SW 82; Gulf, etc., R. Co. v. Kimble, 49 Tex. Civ. A. 622, 109 SW 234; Pecos, etc., R. Co. v. Evans-Snider-Buel Co., 42 Tex. Civ. A. 60, 93 SW 1024.

[a] The reason for the rule (1) is that the question is a mixed one of law and fact as to negligence vel non, and that the admissibility of the opinion which a witness possesses of matters of special knowledge is limited to questions of pure fact. "It would scarcely be claimed that it would have been competent to ask the witness whether or not, in the particular transportation in question in this case, there had been negligent delay, or a want of ordinary diligence, or an unreasonable time consumed, all of which questions would mean substantially the

| market was in fact better in the morning of the day in question than after the cattle arrived. Texas, etc., R. Co. v. Slaughter, 37 Tex. Civ. A. 624, 84 SW 1085.

[b] In determining the market price at destination, evidence as to the market price at other points influencing that at the point of destination may be received. Hudson v. Northern Pac. R. Co., 92 Iowa 231, 60 NW 608, 54 AmSR 550; East Tennessee, etc., R. Co. v. Hale, 85 Tenn. 69, 1 SW 620.

48. St. Louis, etc., R. Co. v. Dean, (Tex. Civ. A.) 152 SW 527.

49. Gulf, etc., R. Co. v. McCorquodale, 71 Tex. 41, 9 SW 80.

50. Galveston, etc., R. Co. V. Noelke, 59 Tex. Civ. A.347, 125 SW 969. 51. Kan. Atchison, etc., R. Co. v. Watson, 71 Kan. 696, 81 P 499. Mo.-McFall V. Chicago, etc., R. Co., 181 Mo. A. 244, 168 SW 344. Pa-Keller v. Pennsylvania R. Co., 17 Pa. Dist. 920.

Tex.-Atchison, etc., R. Co. V. Davidson, 60 Tex. Civ. A. 93, 127 SW 895; St. Louis, etc., R. Co. v. Wilhelm, 49 Tex. Civ. A. 639, 108 SW 1194; Gulf, etc., R. Co. v. House, 40 Tex. Civ. A. 105, 88 SW 1110. Wyo.-Chicago, etc., R. Co. V. Simpson, 151 P 902.

[a] Shrinkage in live stock shipments.-(1) In an action for damages due to the alleged unreasonable delay in the shipment of cattle, it is proper to show the difference between the normal shrinkage and the actual shrinkage of the cattle in question, it being for the jury to say what part of the shrinkage was due to the extra confinement on account of the delay. McFall v. Chicago, etc., R. Co., 181 Mo. A. 244, 168 SW 344. (2) A witness may testify as to the difference in the weight of the cattle at the time of the shipment and three months thereafter. Chicago, etc., R. Co. v. Simpson, (Wyo.) 151 P 902, 905 (where it was said: "The value of the stock three months after it was shipped might have been material as a starting point to determine its value at the time it was unoaded at Tyndell three months before, in view of the condition of the weather, feed, and shelter during the intervening time").

[b] Expert testimony on shrinkage.-(1) Where damages are claimed from a carrier on account of weight unnecessarily lost by cattle in transit, occasioned by a negligent delay,