[95] b. Liability for Injury Caused by Defective Cars Not Owned by Carrier.69 The fact that the carrier uses cars for the transportation of stock, which cars do not belong to it, will not relieve it from liability for loss or injury caused by the defective condition of the cars.70 [96] c. Liability for Injuries on Connecting Line Due to Defective Cars." If a carrier assumes transportation of stock to a point beyond its own line, it must deliver the stock at the terminus of its own road in cars suitable to transport the stock to the point of destination,72 and it is liable for injury to the stock caused by the defective condition of the car, whether the injury occurs on its own line or that of a connecting carrier.73 This is so, even though there is a special contract limiting the liability of the carrier to the end of its road;" and the fact that the connecting carrier accepted the cars from the initial carrier in the condition which they were in with reference to bedding did not make the cars part of the connecting carrier's means of transportation so as to render it liable for damages thereafter occurring by reason of improper bedding, in such sense as to relieve the 74 75 initial carrier from liability for its negligence in failing properly to bed the cars." And where an animal was injured because of defects in a car, the carrier will not be relieved from liability because the shipper failed to accompany and to care for the shipment during the entire journey as provided by the contract.76 [§ 97] d. Contractual Provisions Limiting Liability (1) In General. The duty of the carrier to furnish safe and suitable cars is in no way affected by an express contract to the contrary.78 The failure to discharge its duty in this respect is negligence, and according to well settled principles the carrier cannot by contract or otherwise relieve itself from the consequences of its own negligence. [§ 98] (2) Contractual Provisions Devolving on Shipper Duty of Inspection and Selection.80 It is very generally held that the duty of the carrier to furnish suitable cars cannot be evaded or its liability for failure so to do limited by a mere stipulation in the shipping contract or bill of lading devolving on the shipper the duty of selecting cars suitable for the purposes of his shipment,81 or by 69. Cars used for transportation | tiff desired the use of a car for the of inanimate freight see supra § 89. 70. Ind.-Nashville, etc., R. Co. v. Johnson, (A.) 109 NE 912. Miss. Covington v. Yazoo, etc., R. Co., 71 S 821. N. C.-Kime v. Southern R. Co., 160 N. C. 457, 76 SE 509, 43 LRANS 617. S. C.-Wallingford V. Columbia, etc., R. Co., 26 S. C. 258, 2 SE 19. Tenn.-Louisville, etc., R. Co. v. Dies, 91 Tenn. 177, 18 SW 266, 30 AmSR 871. [a] The fact that the carrier uses a car of a special kind furnished by an independent corporation will not relieve it from liability if the car is defective. Louisville, etc.. R. Co. v. Dies, 91 Tenn. 177, 18 SW 266, 30 AmSR 871. [b] Cars of connecting carriers.— Inasmuch as a terminal carrier is not bound to accept from a connecting carrier a shipment of live stock in a car of insufficient size and improperly bedded, if it does accept such shipment it will be liable for any injuries resulting to the stock by reason of the insufficiency of the car or the lack of bedding. "By accepting said car, and undertaking to transport said horses therein, appellant made such instrumentality its own. Its responsibility flowing therefrom is exactly the same as if it had furnished said car on its motion, and failed to supply it with bedding." Nashville, etc., R. Co. v. Johnson, (Ind. A.) 109 NE 912, 915. 71. Cross references: Cars used for transportation of inanimate freight see supra § 91. Liability of connecting carrier for loss or injury due to defective cars received from initial carrier see infra § 890. 72. Eckert v. Pennsylvania R. Co., 211 Pa. 267, 60 A 781, 107 AmSR 571; and cases infra note 73. 73. Il-Indianapolis, etc., R. Co. v. Strain, 81 11. 504 (escape of animals on connecting line, because of defects in cars). shipment of bees, but furnished a car which was unsuitable therefor and so defective that the bees were injured after the car had left defendant's road and was in the possession of a connecting carrier, the carrier was liable therefor). 74. Indianapolis, etc., R. Co. v. Strain, 81 111. 504; Jones v. St. Louis, etc., R. Co., 115 Mo. A. 232, 235, 91 158; Texas Cent. R. Co. v. O'Loughlin, 37 Tex. Civ. A. 640, 84 SW 1104. [a] Reason for rule.-"From considerations of public policy, to furnish sound and suitable vehicles for the transportation of such property as is usually carried by them, is a duty that common carriers cannot shirk or shift." Jones v. St. Louis, etc., R. Co., 115 Mo. A. 232, 235, 91 SW 158. 75. Texas Cent. R. Co. v. O'Loughlin, 37 Tex. Civ. A. 640, 84 SW 1104. 76. St. Louis, etc.. R. Co. v. Brosius, 47 Tex. Civ. A. 647, 659, 105 SW 1131 (where it was said that nothing that a shipper "would have been required to do under the terms of this special contract would have relieved appellant from its legal duty to furnish him a car free from such defects"). 77. Cross references: Cars used in transportation of inanimate freight see supra § 92. Limitations of liability against negligence in general see infra § 195. 78. See cases infra note 79. 79. Lake Erie, etc., Co. v. Holland, 162 Ind. 406, 69 NE 138, 63 LRA 948: Indianapolis, etc., R. Co. v. Allen, 31 Ind. 394: Welsh v. Pittsburg, etc., R. Co., 10 Ch. St. 465, 75 AmD 490; Trout v. Gulf, etc.. R. Co., (Tex. Civ. A.) 111 SW 220. But see Thomas v. St. Louis, etc., R. Co., 188 Mo. A. 22. 173 SW 96 (holding that a contract for the interstate transportation of animals which declares that the rates for the shipment are lower than if at carrier's risk, that the rates are based on the nature and the extent of liability assumed by the carrier, that the shipper may elect whether to ship under the contract at the lower rate or at the carrier's risk at a higher rate, and which provides that the carrier will not be responsible for any loss from any defect in the cars, and that notice of claim must be given at destination before Cent. R. Co. the stock is mingled with other stock O'Loughlin, 37 Tex. Civ. A. 640, 84 and within one day after delivery at SW 1104 (improper bedding); Inter-destination, is within the Carmack national, etc.. R. Co. v. Aten. (Civ. A.) amendment, and does not contain any 81 SW 346 (holding that, where a car- limitation on the liability of the carrier's agent was informed that plain- rier as against its own negligence). Ky-Burnside, etc.. R. Co. v. Tupman, 72 SW 786. 24 KvL 2052. Mo.-Jones v. St. Louis, etc.. R. Co.. 115 Mo. A. 232, 91 SW 158 (escape of animals on connecting line due to improper bedding). Nebr.-Fuller v. Chicago, etc., R. Co., 99 Nebr. 611, 157 NW 332. Tex-Texas [a] Contracts within rule.-(1) Provisions of a carrier's live stock contract that the shipper should inspect the cars in which the stock was to be transported, and that the shipper's loading the stock into the cars should be an acknowledgment and an acceptance by him of their sufficiency and suitability in every respect, and that the carrier should not be liable for damages caused by delay, etc.. were unreasonable as an attempt by the carrier to limit its liability for its own negligence. Adams v. Colorado, etc., R. Co., 49 Colo. 475, 113 P 1010, 36 LRANS 412 and note. (2) It has similarly been held that a statement in a contract for the shipment of live stock that the condition of the cars and the bedding was satisfactory did not relieve the carrier from liability for failure properly to bed the cars, a carrier not being permitted to limit its common-law liability. Texas Cent. R. Co. v. McCall, (Tex. Civ. A.) 166 SW 925. 80. Contract imposing duty of inspecting pens and inclosures on shipper see supra § 82. 81. Blatcher v. Philadelphia, etc., R. Co., 31 App. (D. C.) 385, 388, 16 LRANS 991 [cit Cyc]; Berry v. Chicago, etc., R. Co., 24 S. D. 611, 24 SW 859; Gulf Coast, etc., R. Co. v. Boge, (Tex. Civ. A.) 169 SW 1093; Shay v. Union Pac. Co., (Utah) 153 P 31 (holding that under the Carmack amendment a stipulation in a bill of lading of emigrant movables, including horses, that the shipper should inspect the cars in which the stock was to be transported and satisfy himself that they were safe and in proper condition, and report to the carrier's agent or employee any visible defect therein, and demand necessary repairs before using them, and that the fact of his allowing his stock in the cars should be an acceptance of their suitability, and that he thereby assumed all the risk, loss, or damage from any other cause than the willful negligence of the carrier, referred only to such defects as might in some way affect the safety or suitability of the cars for transportation purposes, and not to defects which could become dangerous or operative only by reason of some subsequent negligence of the carrier, so that the shipper's unreported notice of a defect in the door of a car and his agent's unreported notice of a defect in the roof through which sparks from a helper engine placed too near the car fell, causing a fire which destroyed its contents, did not charge the shipper with contributory a general stipulation that the shipper has examined the car in which the stock is shipped and accepts it as suitable and sufficient.82 This will not estop him from recovering for injuries due to a defective ear, inasmuch as the carrier cannot limit his common-law liability so as to exempt himself from the consequences of his own negligence.83 And even though such a contract was valid, if the carrier knew at the time that the car selected was unsafe and the shipper failed to discover such unsoundness by reason of the defects being latent, proof of such facts would charge the carrier with liability for injuries resulting therefrom.84 87 89 for any injury which may result exclusively from such defects.86 However, it must appear that the shipper with proper opportunities for observation and with notice of the actual condition of the cars assented to the use of them.8 Nothing less than a distinct agreement to assume the risk is sufficient.88 Shipper's presence during loading. The mere presence of the shipper will not lessen the carrier's responsibility as to the safety of the cars, where the shipper has no control over the matter. Inspection of car by shipper or knowledge of defects.9 Likewise the mere fact that the shipper examined the car and made no objections to its fitness, or mere knowledge on his part that the cars are not provided with such appliances as are required by common law or statute, or that they are otherwise defective92 will not, in general, relieve the carrier from liability. A limitation of of lading that the shipper examined | furnished, instead of waiting for a the car, and found it safe and suitable, does not operate as an estoppel, but only imposes on him the burden of proving that it was unsafe, or unsuitable." Western R. Co. v. Harwell, 91 Ala. 340, 341; 8 S 649. [99] e. Assumption of Risk by Shipper.85 Where the shipper of live stock makes his own selection of the vehicles under circumstances which charge him with full knowledge of all their capabilities and defects the carrier is not responsible negligence in the selection and use of the car). See also infra § 201 (as sustaining this view). [a] "It is against the policy of the law to permit a common carrier to evade its plain duty by attempting to make a car inspector of the shipper, who may know nothing about cars or their equipment." Blatcher v. Philadelphia, etc., R. Co., 31 App. (D. C.) 385, 388, 16 LRANS 991. 82. U. S.-Cincinnati, etc., R. Co. v. Fairbanks, 90 Fed. 467, 33 CCA 611. Ala.-Western R. Co. v. Harwell, 91 Ala. 340, 8 S 649. Miss. Covington v. Yazoo, etc., R. Co., 71 S 821. N. C.-Washington Horse Exch. v. Louisville, etc., R. Co., 171 N. C. 65, 70, 87 SE 941 [cit Cycl. Oh. Welsh v. Pittsburg, etc., R. Co., 10 Oh. St. 65, 72 AmD 490. S. C.-Kime v. Southern R. Co., 160 N. C. 457, 461, 76 SE 509, 43 LRANS 617 [cit Cyc]. Tenn.-Louisville, etc., R. Co. v. Dies. 91 Tenn. 177, 18 SW 266, 30 AmSR 871. Tex.-San Antonio, etc., R. Co. v. Dolan, (Civ. A.) 85 SW 302; Galveston, etc., R. Co. v. Silegman, (Civ. A.) 23 SW 298; Gulf, etc., R. Co. v. Wilhelm, 3 Tex. A. Civ. Cas. § 458. See also Southern Kansas R. Co. V. Hughey, (Civ. A.) 182 SW 361 (holding that an agreement requiring the shipper to inspect the cars and to accept them if in good condition, and declaring that in the event of failure it shall be conclusively presumed that the cars were suitable, is void). Wash.-Buck v. Oregon R., etc., Co.. 53 Wash. 113, 101 P 491. See also Leonard v. Whitcomb, 95 Wis. 646, 70 NW 817 (holding that a carrier is liable for injury to animals shipped, from a defect in the car which a reasonably careful inspection by an experienced person would have disclosed, but which was not obvious or such as would ordinarily be discovered by an inexperienced person, notwithstanding a stipulation that the shipper examine the car and assume the risk of its suitableness, unless he acepted it with full knowledge of the defect). But see Central of Georgia R. Co. v. James, 117 Ga. 832, 838, 45 SE 223 (where the court said: "The contract between them also recited that the shipper had examined the car provided by the carrier and found it in good order and condition, and that he had accepted the same as suitable and sufficient for the purpose intended. A shipper who enters into such an agreement must be held to waive all defects in the car furnished him, save such only as are latent and therefore not readily discoverable by him." and the holding was in accordance with this language). "If the carrier furnishes an unsafe and unsuitable car for the transportation of live stock, this is negligence; and a recital in the bill 91 90 "The carrier owns and presents the cars for loading. The shipper has little, if any, option in selecting the equipment to be used. In the very nature of things he is powerless to register any effective protest. The carrier owes to the shipping public the duty of providing reasonably safe appliances and cars, and its duty in this regard cannot be evaded or its liability limited by a contract, the terms of which the shipper under all the circumstances of any particular case is bound to agree to. These provisions are written into a printed form of lading in common use by railroad companies and constitute a deliberate effort on the part of transportation companies to shift the consequences of their own negligence upon the shipper." Covington V. Yazoo, etc., R. Co., (Miss.) 71 S 821, 823. 83. See cases supra notes 81, 82. 84. Lake Erie, etc., R. Co. v. Holland, 162 Ind. 406, 69 NE 138, 63 LRA 948 (where it was further held that the fact that the shipper failed to comply with a provision of the contract binding him to send an attendant with the stock would not affect the carrier's liability). 85. See also supra §§ 93, 98. 86. Ill. Illinois Cent. R. Co. v. Hall, 58 Ill. 409. Mass.-Pratt v. Ogdensburg, etc., R. Co., 102 Mass. 557. Mich.-Great Western R. Co. V. Hawkins, 18 Mich. 427. Mo.-Otrich v. St. Louis. etc., R. Co., 154 Mo. A. 420, 134 SW 665. N. Y.-Harris v. Northern Indiana R. Co.. 20 N. Y. 232 And see Louisville, etc., R. Co. v. Shepherd, 7 Ala. A. 496, 61 S 14 (holding that a carrier of live stock may make a special contract with the shipper, whereby the latter assumes the duty of guarding the stock against such risks as might be incurred by a lack of proper bedding in the car); Coupland v. Housatonic R. Co., 61 Conn. 531, 23 A 870, 15 LRA 534 (where it appeared that plaintiff knew of the existence of defects in the box car in which the animal was shipped and was informed by defendant before shipment that he could have a special horse car on payment of a reasonable rate additional, which plaintiff refused and thereupon attempted to correct the defects in the box car, and the animal was sent therein without his objection, and it was held that it was for the jury to determine from the facts whether plaintiff assumed the risks incident to the defects in question, and whether defendant furnished a suitable car). [a] Application of rule. A shipper of live stock who accepts a car better car on the following day as promised by the carrier's agent, and who repairs and beds it and loads his stock therein, may not hold the carrier liable for defects in the car. Otrich v. St. Louis, etc., R. Co., 154 Mo. A. 420, 134 SW 665. [b] Cars of another carrier.Where a shipper refuses to use the cars of one carrier and selects and procures the cars of another company, he cannot recover for loss or injury caused by the escape of animals shipped, by reason of defective door fastenings. Illinois Cent. R. Co. v. Hall, 58 Ill. 409. 87. Peters v. New Orleans, etc., R. Co., 16 La. Ann. 222, 79 AmD 578; Great Western R. Co. v. Hawkins, 18 Mich. 427; Harris v. Northern Indiana R. Co., 20 N. Y. 232, 236 (where it was said that the carrier is bound to see that the shipper has such knowledge. He is not bound to enter the vehicles to examine them. Το exonerate the carrier he must show that defects not palpable and visible were pointed out, or prove such circumstances as will justly charge the freighter with knowledge of their existence. "The company has greatly the advantage in such a transaction, inasmuch as its agents are, or must be presumed to be, familiar with the condition, capacity and quality of their vehicles; while a stranger, called upon to make a selection, without any previous knowledge, would be very liable to overlook many defects"). 88. Pratt v. Ogdensburg, etc., R. Co., 102 Mass. 557. 89. Peters V. New Orleans, etc.. R. Co., 16 La. Ann. 222, 79 AmD 578. 90. Shipper's knowledge that pens are defective as relieving carrier of liability see supra § 82. 91. Gulf, etc., R. Co. v. Cunningham, 51 Tex. Civ. A. 368. 113 SW 767. 92. U. S.-Ogdensburg, etc., R. Co. v. Pratt, 22 Wall. 123, 22 L. ed. 827. Colo.-Union Pac. R. Co. v. Rainey, 19 Colo. 225, 34 P 986. Ky.-Louisville, etc., R. Co. V. Rash, 141 Ky. 225, 132 SW 553, 554 [appr Ogdensburg, etc., R. Co. V. Pratt, supra]. Mass. Pratt v. Ogdensburg, etc., R. Co., 102 Mass. 557. Mo.-Paddock v. Missouri Pac. R. Co., 60 Mo. A. 328 (knowingly loading hogs into a car not provided with trap doors as required by statute). And see Mason v. Missouri Pac. R. Co., 25 Mo. A. 473 (discussing the rule). Oh-Welsh v. Pittsburg, etc., R. Co., 10 Oh. St. 65, 75 AmD 490. Tex.-St. Louis, etc., R. Co. v. Brosius, 47 Tex. Civ. A. 647, 105 SW 1131. "The individual, in a sense. is compelled to accept of whatever is offered him by the carrier and cannot refuse it without, perhaps, destroying his interests." Paddock v. this principle recognized by a number of decisions. is that, if the cars are manifestly unfit for the purpose intended and likely to produce loss or injury of which fact the shipper is fully aware and he nevertheless accepts the cars, he cannot recover for loss or injury resulting from such unfitness,93 especially where the defect is not known to the carrier. Under these circumstances, it is held that the shipper should notify the carrier of the defect.95 [§ 100] F. Care of Goods While in TransitIntroductory Statement. As heretofore stated, the carrier is bound to exercise such care as is required to protect the goods from loss or injury during transportation.96 1. 94 [101] 2. Inanimate Freight-a. Refrigeration. As previously shown, when a carrier undertakes the transportation of perishable goods, it is Missouri Pac. R. Co., 60 Mo. A. 328, 340. [a] Applications of rule. (1) Where the shipper in reliance on the carrier's promise to repair defective cars brings in a large number of cattle from a considerable distance, the fact that he uses the cars knowing that the carrier has failed to comply with his agreement to repair the cars does not amount to an assumption of risk from the use of the cars, and where because of defects therein the cattle are injured, the carrier will be liable. "The defendant could, under the circumstances, and therefore did, impose upon them such conditions of risk as were alike inconsistent with the previous understanding of the parties and with the duty resulting from the public employment in which the defendant was engaged." Welsh v. Pittsburg, etc., R. Co., 10 Oh. St. 65, 76, 75 AmD 490. (2) When a carrier agrees to furnish a certain car for a particular purpose which is known to him and fails, his negligence is not waived by the shipper's acceptance of the car furnished; and where a shipper of horses ordered an Arms palace car and was given an inferior kind, he did not waive the negligence of the carrier in using the one sent, and the carrier is liable for injuries to the horses because of the inferior car. Louisville, etc., R. Co. v. Rash, 141 Ky. 225, 132 SW 553. (3) If a carrier is guilty of negligence in furnishing an unsuitable car, the fact that the shipper undertakes to bed it and to put it in a proper condition for the shipment of cattle will not relieve the carrier of its liability for negligence. Trout v. Gulf, etc., R. Co., (Tex. Civ. A.) 111 SW 220, 221 (where the court said: "It may be conceded that appellee lawfully could have employed appellants to remove the mud from the car, bed it, and do anything else which may have been necessary to be done to render it suitable for the use to be made of it. In the performance of such a service, however, appellants would have been acting as appellee's servants and employes. and it would have been appellee's duty to have seen that the service was so performed as to render the car a suitable one. For their negligence in failing to properly perform the service, appellee would. we think. have been as clearly liable as would have been had the service been performed by other persons chosen by it to do it. To hold otherwise would be to say that the carrier can always relieve itself of liability for negligence due to defects in its cars, etc.. by showing that the person sustaining injury as the result of such defects had been employed by it to remedy same. It seems to us that the rights of the parties will be more securely guarded. and the principles of law controlling them become less confused, if in such a case it its duty to furnish cars especially adapted for the 99 Ga.-Southern R. Co. v. Williams, 139 Ga. 357, 77 SE 153. Iowa.-C. C. Taft Co. v. American Express Co., 133 Iowa 522, 110 NW 897; Beard v. Illinois Cent. R. Co., 79 Iowa 518, 44 NW 800, 18 AmSR 381, 7 LRA 280. Diffendahl, 109 Md. 494, 72 A 193, Md.-Philadelphia, etc., R. Co. v. 458; Orem Fruit, etc.. Co. v. Northern Cent. R. Co., 106 Md. 1, 66 A 436, 124 AmSR 462. at the point of shipment, but at such places along its line as will reasonably insure a safe transit to the point of destination.9 This is especially true where re-icing is rendered necessary by delay attributable to the carrier's negligence.1 This duty is in no way dependent on an express contract imposing it, and the carrier's liability is not affected by the fact that the bill of lading is silent on the the relations of the parties as em- | 118 AmSR 58, 10 LRANS 317 and ployer and employe, and carrier and note. shipper, are not lost sight of. For the employe's failure to perform a service he has contracted to perform the employer should have his remedy, but such failure ought not to relieve the employer in his character as a common carrier from the performance of a duty he owes his employe in the latter's character as a shipper. If, before the car is fit for the use to be made of it, it must be unloaded, or cleaned, or repaired in any way, the shipper, of course, may contract to do the work. After so contracting, for a breach of his contract he might be liable in damages to the company; but, so long as it is the law that it cannot contract against liability for its own negligence, it ought not to be held that, because he may have been so liable, the company was relieved of its duty to see to it that the car was fit for use before furnishing it to him as a shipper"). (4) It was similarly held in St. Louis, etc., R. Co. v. Brosius, 47 Tex. Civ. A. 647, 105 SW 1131, that, where one of the plaintiffs on application was tendered a single car in which to transport his mules, and this he merely "bedded down" and nailed planks around to prevent the mules from getting their feet through the openings, he did not thereby relieve the carrier from liability for injuries to one of the mules by reason of its negligence in permitting a bolt to protrude within the car. [b] Even if a carrier does furnish even 93. Blair v. Wells. 155 Iowa 190, 135 NW 615 (where it was said that "the shipper can not shut his eyes to the clear and manifest unfitness of the car tendered him"); Ft. Worth. etc.. R. Co. v. Word. (Tex. Civ. A.) 32 SW 14. See also Chicago, etc., R. Co. v. Van Dresar, 22 Wis. 511 (recognizing the rule). Mich.-Johnson v. Toledo, etc., R. Co., 133 Mich. 596, 95 NW 724, 103 AmSR 464. Minn. Brennisen v. Pennsylvania R. Co., 100 Minn. 102, 110 NW 362, 10 AnnCas 169 and note. Mo.-St. Louis. etc., R. Co. V. White, (A.) 103 SW 673. Tex.-Missouri, etc., R. Co. v. McLean, 55 Tex. Civ. A. 130, 118 SW 161. Va.-New York, etc., R. Co. V. Cromwell, 98 Va. 327, 35 SE 444, 49 LRA 462, 81 AmSR 722. "The common law undoubtedly requires care in transporting perishable goods, and, under modern methods, we have no doubt that it would be held to extend to proper refrigeration, according to established custom." Johnson v. Toledo, etc.. R. Co., 133 Mich. 596, 600, 95 NW 724. 103 AmSR 464; St. Louis Southwestern R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. [a] As otherwise expressed a failure to ice the cars is a want of proper care for the protection and the preservation of the goods and would be an act of negligence. Brennisen v. Pennsylvania R. Co., 100 Minn. 102, 110 NW 362, 10 AnnCas 169 and note. 99. C. C. Taft Co. V. American Express Co., 133 Iowa 522, 110 NW 897; Pennsylvania R. Co. v. Orem Fruit, etc., Co., 111 Md. 356, 73 A 571. to "The refrigeration must be continuous, and nothing will serve to excuse except an act of God, which could not be foreseen or guarded against. Neither damp weather or the delays ordinarily incident railway traffic fall under that head. This is the law, and we must assume that the court SO instructed the C. C. Taft Co. v. American Express Co., 133 Iowa 522, 526, 110 NW 897. 94. Betts v. Farmers' L. & T. Co.. 95. Betts v. Farmers' L. & T. Co., 97. See supra § 88. Ark.-St. Louis, etc., R. Co. v. Renfroe, 82 Ark. 143, 100 SW 889. [a] Evidence sufficient to establish negligence. Where an express company contracted to carry certain berries in a refrigerator car, evidence that when the car arrived the ice bunkers of the car were found to be nearly empty and the berries spoiled was sufficient to establish the carriers negligence. C. C. Taft Co. V. American Express Co., 133 Iowa 522, 110 NW 897. 1. St. Louis. etc.. R. Co. v. White, (Mo. A.) 103 SW 673. 6 subject. The law implies an undertaking on the part of the carrier to exercise the diligence that the character of the goods requires.3 Nor is the carrier's liability for injuries caused by insufficient icing affected by the fact that the shipper discovered that the cars were insufficiently iced before their departure, if they had no opportunity to remedy the situation and believed that the goods would reach their destination without injury, or if the shipper called the attention of the carrier's agent to the fact that the cars were insufficiently iced and was assured that sufficient ice would be furnished. And where injury results to a shipment of perishable property because of the carrier's failure properly to ice the cars, the carrier cannot evade responsibility for the resulting injury by showing that the cars belonged to another company. However, the carrier is not bound to re-ice cars containing perishable goods in the absence of directions by the shipper, where the bill of lading exempts it from liability for injury caused by heat. And where the shippers of perishable goods undertook to supply the refrigerator car with ice, the carrier had a right to assume, except as facts may have existed that put it on notice to the contrary, that the shippers had furnished enough ice to keep the car cool until a delivery to the consignee could be had in the ordinary course of business. So where cars were properly iced at the nearest station to that at which the goods were shipped, the carrier was not required to re-ice the cars at the point of shipment where it had no icing plant, and where the necessity of re-icing was caused by the delay of plaintiff in loading the cars. The carrier is also relieved of its duty to re-ice in transit where the consignee expressly so directs, as under the cir 2. St. Louis Southwestern R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. [a] Custom as affecting duty.The carrier's duty to ice cars is not affected by the fact that it is customary among shippers of fruit from and to designated points during the season when the weather is so warm that it becomes necessary to ice the cars before shipping the same to cause instructions to be placed in the bill of lading in reference to icing. St. Louis Southwestern R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. em [b] Rules of carrier as affecting duty. The rule of a railroad company not to re-ice refrigerator cars unless they could get six hundred pounds of ice in the ice tanks, unknown to a shipper and not braced in his contract, does not relieve the company from the duty imposed by the contract of re-icing the refrigerator at specified points in the journey. Orem Fruit, etc., Co. V. Northern Cent. R. Co., 106 Md. 1, 66 A 436, 124 AmSR 462. 3. International, etc., R. Co. V. Welbourne, (Tex. Civ. A.) 113 SW 780. 4. Johnson v. Toledo. etc.. R. Co., 133 Mich. 596, 95 NW 724, 103 AmSR 464. 5. Southern R. Co. v. Williams, 139 Ga. 357, 77 SE 153. 6. St. Louis, etc., R. Co. v. Renfroe. 82 Ark. 143. 100 SW 889. 118 AmSR 58. 10 LRANS 317; New York, etc.. R. Co. v. Cromwell, 98 Va. 227. 35 SE 444, 81 AmSR 722, 49 LRA 462 (where the court said: "A railroad company cannot escape responsibility for its failure to provide cars reasonably fit for the conveyance of the particular class of goods it undertakes to carry by alleging that the cars used, for the purposes of its own transit, were the property of another"). See also supra § 89. 8 cumstances the latter assumes all risk of damage.10 Correlative right to furnish ice. Where the carrier is under obligation to furnish ice for refrigeration, it has the corresponding right to furnish, and to charge for, ice where it is needed.11 However, it is not to be understood from what is here said that because carriers have ice on hand they can compel the shipper to have his goods iced where on account of the state of the weather or for other cause he prefers to have them forwarded under ventilation only.12 [102] b. Ventilation. If the preservation of perishable goods requires that the cars in which they are shipped shall be ventilated, it is the carrier's duty to see that they are kept properly ventilated. This duty exists independent of express contract, and a failure to comply with it resulting in loss or injury will render the carrier liable for damages, although the bill of lading is silent on the subject of ventilation.1 13 The [§ 103] 3. Live Stock-a. In General. carrier assumes the same responsibility for the safe carriage and delivery of animals as in the carriage of other kinds of property, except from injuries resulting from the nature, habits, propensities, viciousness, or other inherent qualities of the animals.14 And in the absence of a statute or a provision in the bill of lading, the common-law rule as to the duty to care for live stock in transportation is imported into, and becomes a part of, the contract.15 The carrier is bound to use reasonable care to transport without injury live stock placed in its hands for shipment and will be liable for damage or for loss proximately resulting from its failure so to do.16 However, this is the extent of its duty; and it is not absolutely bound to de 7. Mittenthal v. Michigan Cent. R. Co., 176 Ill. A. 77. 8. Chicago, etc., R. Co. v. Reyman, (Ind.) 72 NE 587. 9. Wright v. Midland Valley R. Co., 111 Ark. 196, 163 SW 1151. 10. Southern Express Co. v. Fant Fish Co., 12 Ga. A. 447, 78 SE 197 (holding further that, where a consignee directed the carrier not to re-ice fish in transit, and decay resulting from failure to re-ice made transportation unsafe, the carrier could discharge or destroy the shipment without liability). 11. Atchison, etc., R. Co. v. U. S., 232 U. S. 199, 34 SCt 291, 58 L. ed. 568 (where it was said that this is "an economic necessity due to the fact that the carrier cannot be expected to prepare to meet the demand, and then let the use of their plants depend upon haphazard calls, under which refrigeration can be demanded by all shippers at one time and by only a few at_another"). 12. Atchison, etc., R. Co. v. U. S., 232 U. S. 199, 34 SCt 291, 58 L. ed. 568. See also supra § 66; infra § 126. 13. Western R. Co. v. Hart, 160 Ala. 599, 49 S 371; Gulf, etc., R. Co. v. Stewart, (Tex. Civ. A.) 141 SW 1020; St. Louis Southwestern R. Co. v. Jackson, 55 Tex. Civ. A. 407, 118 SW 853. 14. See supra § 13; infra § 149. 15. Chicago, etc., R. Co. v. Hostetter, 171 Ind. 465, 84 NE 534. 16. U. S.-Southern Pac. Co. v. Arnett, 111 Fed. 849, 50 CCA 17. Ala.-Southern Express Co. v. Ashford, 126 Ala. 591. 28 S 732. Del. Klair v. Philadelphia, etc., R. Co., 25 Del. 274. 78 A 1085. Ill-Chicago, etc., R. Co. v. Calumet Stock Farm, 194 Ill. 9, 61 NE 1095; Toledo, etc.. R. Co. v. Hamilton, 76 Ill. 393; Toledo, etc., R. Co. v. Thompson, 71 Ill. 434: Illinois Cent. R. Co. v. Adams, 42 Ill. 474, 92 AmD 85; U. S. Express Co. v. Burke, 94 Ill. A. 29. Ind.-Indianapolis, etc., R. Co. v. Allen, 31 Ind. 394. Kan.-North Iowa.-Kinnick v. Chicago, etc., R. Co., 69 Iowa 665, 29 NW 772. Missouri R. Co. V. Akers, 4 Kan. 453, 96 AmD 183. Ky. Illinois Cent. R. Co. v. Holt, 92 SW 540, 29 KyL 135. La-Pitre v. Offutt, 21 La. Ann. 679, 99 AmD 749. Minn. Ross v. Minneapolis, etc., R. Co., 102 Minn. 249, 113 NW 573. Miss. Johnson v. Alabama, etc., R. Co., 69 Miss. 191, 11 S 104, 30 AmSR 534. Mo.-Lackland v. Chicago, etc., R. Co., 101 Mo. A. 420, 74 SW 505: Pacific Express Co. v. Emerson, 101 Mo. A. 62, 74 SW 132. Nebr.-Ralston V. Union Pac. R. Co., 99 Nebr. 199, 147 NW 478; ChiR. cago, etc., Co. v. Williams, 61 Nebr. 608, 85 NW 832. N. J. Feinberg v. Delaware, etc., R. Co., 52 N. J. L. 451, 20 A 33. N. Y.-Olds v. New York Cent., etc., R. Co., 107 App. Div. 26, 94 NYS 924. N. C.-Harden v. Chesapeake, etc., R. Co., 157 N. C. 238, 72 SE 1042. Pa-Powell v. Pennsylvania R. Co., 32 Pa. 414, 75 AmD 564. S. D.-Drake v. Great Northern R. Co., 24 S. D. 19, 123 NW 82. Tex.-Gulf, etc.. R. Co. v. Ellison, 70 Tex. 491, 7 SW 785; Gulf, etc., R. Co. v. Brock, (Civ. A.) 150 SW 488; Missouri, etc., R. Co. v. Aycock, (Civ. A.) 135 SW 198: Missouri, etc., R. Co. v. Lewellen, (Civ. A.) 111 SW 773; Southern Kansas R. Co. v. Yarbrough, 49 Tex. Civ. A. 407, 109 SW 390; Waggoner v. Missouri, etc., R. Co., (Civ. A.) 92 SW 1028; Texas, etc.. R. Co. v. Byers. (Civ. A.) 84 SW 1087; Texas, etc., R. Co. v. Dawson, 34 Tex. Civ. A. 240, 78 SW 235; Ft. Worth. etc., R. Co. v. Locke, 30 Tex. Civ. A. 426. 70 SW 456; Texas, etc.. R. Co. v. Tribble, 29 Tex. Civ. A. 104, 67 SW 890. Utah.-Rick v. Wells, 39 Utah 130, 115 P 991. "Natural vices" and propensities.19 Care and vigilance must be used to guard against and restrain the natural vices and propensities of the animals themselves, in order to prevent them from injuring themselves and each other.20 Escape of animals. Care must also be exercised during the transportation to prevent the animals shipped from escaping through the windows or the doors of the car,21 and also to prevent their escape when they are unloaded for some reason incident to the transportation.22 Bedding.23 And it is negligence on the part of the carrier to place a stock car in which straw bedding is used near to the engine, so as to expose the animals to danger of loss by reason of fire being communicated by sparks to the straw.24 reasonably necessary.25 [104] b. Duty to Prevent Jarring and Concussion in Moving Trains. In case of transportation by rail the trains must be so managed as not to injure the animals by unnecessary concussion.20 Flying switch. A railroad company is guilty of gross carelessness in making a "flying switch," whereby one freight car is kicked violently against another containing animals, thereby injuring them.27 The fact that the shipper undertakes to accompany his stock in a car, and to look after it to a limited extent, does not relieve the carrier of the duty to prevent injuries in switching the car.28 [§ 105] c. Duty to Provide Feed, Water, and Rest (1) Carrier's Duty in Absence of Statute or Special Contract Fixing Duty—(a) Statement of Rule. The general duty of caring for live stock in the course of transportation involves the duty to feed, water, and rest the animals, as far as is reasonably necessary for keeping them in good condition; and the shipper is under no obligation to incur expense in that behalf, especially where the stock is being unlawfully held at destination by 29 Furnishing attendants. The carrier is not bound to furnish attendants for animals which it assumes to transport, where such attendants are not Wash.-Bartlett v. Oregon R., etc., | cold, its obligation to take the necesCo., 57 Wash. 16, 106 P 487, 135 Am sary steps for protecting the stock SR 959. is of the highest order known to due care, and such obligation is not modified by the shipper accompanying the stock under a special contract which requires him to provide feed and water. Colsch v. Chicago, etc., R. Co., (Iowa) 117 NW 281. Eng. Stuart v. Crowley, 2 Honk. 323, 3 ECL 428. Ont.-McCormack v. Grand Trunk R. Co., 6 Ont, 677. [a] Overheating.-Where a shipper of a live hog, accompanying the same, requests the agent of the express company in charge of the consignment to aid him in placing the hog where it could get more air and so prevent it from dying by overheat, and, on the agent declining so to do, the hog dies, the agent is guilty of neglecting his plain duty under the circumstances, and the carrier is liable for his negligence. U. S. Express Co. v. Council, 84 Ill. A. 491. See also infra § 116. [b] Care of fish.-(1) That an express company's employee used due care and diligence according to his best knowledge does not excuse liability for the death of part of the fish shipped, the company's duty being fixed by law, and not measurable by the employee's knowledge. Rick V. Wells, 39 Utah 130, 115 P 991. (2) And in a suit against an express company for the death of young trout in transit, it was error to assume as a matter of law that the fish were afflicted with such latent infirmity as to require the shipper to notify the company what to do in caring for them in transit, the necessity for such notice being properly found on evidence as a question of fact. Rick v. Wells, supra. 17. Texas, etc., R. Co. v. Stewart, 52 Tex. Civ. A. 514, 114 SW 413. 18. Wilke v. Illinois Cent. R. Co., 153 Iowa 695, 133 NW 746, AnnCas 1913E 308; Louisville, etc., R. Co. v. Warfield, 98 SW 313. 30 KyL 352; Lachner v. Adams Express Co., 72 Mo. A. 13; Texas, etc., R. Co. v. Stewart. 52 Tex. Civ. A. 514, 114 SW 413; Missouri, etc.. R. Co. v. Garrett, 39 Tex. Civ. A. 246, 89 SW 172; St. Louis Southwestern R. Co. v. Smith, (Tex. Civ. A.) 77 SW 28; Ft. Worth, etc., R. Co. v. Lock, 30 Tex. Civ. A. 426, 70 SW 456. [a] Unprecedented weather conditions. (1) A carrier is not liable for loss or injury to live stock caused by unprecedented climatic conditions, where the provisions for the protection of stock are sufficient for ordinary conditions. Louisville, etc.. R. Co. v. Warfield, 98 SW 313, 30 KyL 352. (2) But if a carrier. while transporting a carload of live stock. for its own convenience sets the car out on a sidetrack and leaves it for several hours exposed to extreme 19. See also infra § 149 et seq. 20. Iowa.-Kinnick V. Chicago, etc., R. Co., 69 Iowa 665, 29 NW 772. Mo.-Pacific Express Co. v. Emerson, 101 Mo. A. 62, 74 SW 132. N. C.-Harden v. Chesapeake, etc., R. Co., 157 N. C. 238, 72 SE 1042. Tex.-Galveston, etc.. R. Co. V. Jones, (Civ. A.) 123 SW 737; Gulf Coast R. Co. v. Powers, (Civ. A.) 117 SW 416. Wis. Loeser v. Chicago R. Co., 94 Wis. 571, 69 NW 372. [a] "Piling up" or crowding.-The carrier must keep a reasonably careful watch over the stock during the journey to prevent their injuring each other or themselves by piling up or crowding. Kinnick v. Chicago, etc., R. Co., 6 Iowa 665, 29 NW 772. [b] If the tendency of the animal when down is to become paralyzed in its legs and to die, it must be relieved by getting it on its feet; and it is the duty of a carrier to put the animal so situated on its feet. Pacific Express Co. v. Emerson, 101 Mo. A. 62, 74 SW 132. 21. Indianapolis, etc., R. Co. v. Allen, 31 Ind. 394. [a] Failure to fasten animals properly.-In Stuart v. Crawley, 2 Stark. 323, 3 ECL 428, the carrier was held responsible for the loss of a dog which it allowed to get away, although the fastening used was that furnished by the owner. Compare Richardson v. North Eastern R. Co.. L. R. 7 C. P. 75, 5 ERC 329 [dist Stuart v. Crawley, supra]. 22. Pitre v. Offutt, 21 La. Ann. 679, 99 AmD 749: Mason v. Missouri Pac. R. Co., 25 Mo. A. 473; Feinberg v. Delaware, etc., R. Co., 52 N. J. L. 451. 20 A 33. See also North Missouri R. Co. v. Akens, 4 Kan. 453, 96 AmD 183 (recognizing the rule). [a] In case the animals are thus unloaded, reasonable care must also be used in giving them shelter, as far as practicable, from inclement weather. Feinberg v. Delaware, etc., R. Co., 52 N. J. L. 451, 20 A 33. [b] Escape after arrival at destination.-Where mules escape while being driven to water after they have arrived at their destination, there may be a question as to whether the carrier is liable as a warehouseman only, or as a carrier, and an instruc tion as to the liability of the company is erroneous if it fails to point out the distinction between the company's liability as a warehouseman and as a carrier. North Missouri R. Co. v. Akers. 4 Kan. 453, 96 AmD 183. 23. See also supra § 94. 24. McFadden v. Missouri Pac. R. Co., 92 Mo. 343, 4 SW 689, 1 AmSR 721; Powell v. Pennsylvania R. Co., 32 Pa. 414, 75 AmD 564. 25. Ames v. Fargo, 114 App. Div. 666, 99 NYS 994. 26. Ill-Chicago, etc., R. Co. V. Grimes, 71 III. A. 397. Iowa. Thompson v. Chicago, etc., R. Co., 158 Iowa 235, 139 NW 557. Miss.-Illinois Cent. R. Co. v. Kerl, 77 Miss. 736, 27 S 993. N. Y.-Newman v. Pennsylvania R. Co., 33 App. Div. 171, 53 NYS 456, 27 NYCivProc 377. Tex.-Gulf, etc.. R. Co. v. Ellison, 70 Tex. 491. 7 SW 785. Wash.-Bartelt v. Oregon R., etc., Co., 57 Wash. 16, 106 P 487, 135 Am SR 959. [a] Thus, if in transporting stock, the cars can be stopped and started without doing it so abruptly as to throw the cattle down and injure them, it is the duty of the carrier so to do. If jerks having such effect will necessarily occur, then occasions for them to occur ought not to be furnished more frequently than the careful operation of a train makes necessary. Gulf, etc., R. Co. v. Ellison, 70 Tex. 491, 7 SW 785. [b] In applying this principle, it was held, in an action to recover damages for injury to a horse which was being carried in a railroad car, that proof that the injury was occasioned by a sudden stopping of the car, so violent that a wooden bar in front of the horse was broken in two, and two halters secured to the top of the car were snapped, and the horse was thrown down and his back broken, and that employees of the company at once entered the car to see if injury had been done, raises a presumption of negligence on the part of the company. Newman v. Pennsylvania R. Co., 33 App. Div. 171, 53 NYS 456, 27 NYCivProc 377. 27. Chicago, etc., R. Co. v. Calumet Stock Farm, 96 III. A. 337 [aff 194 Ill. 9, 61 NE 1095, 88 AmSR 68]. 28. Thompson v. Chicago, etc., R. Co., 158 Iowa 235, 139 NW 557. 29. Ark.--St. Louis Southwestern R. Co. v. Mitchell, 101 Ark. 289, 142 SW 168, 37 LRANS 546. Ga.-Cranor v. Southern R. Co., 13 Ga. A. 86, 78 SE 1014. Ill. Toledo, etc., R. Co. v. Hamilton, 76 Ill. 393; Illinois Cent. R. Co |