165, 4 Am. Rep. 466; Heller v. Chicago etc. Ry. Co., 109 Mich. 53, 63 Am. St. Rep. 541, 66 N. W. 667. The supreme court of Oregon expressed itself as strongly impressed with the Michigan rule in Honeyman v. Oregon etc. R. Co., 13 Or. 352, 57 Am. Rep. 20, 10 Pac. 628. The courts, in sustaining the validity of contracts exempting railway companies for injuries to wild animals while being transported in cars owned by circus proprietors but conveyed under special contracts providing for the hauling thereof, have based their decisions on the principle that the railway company in hauling such animals is acting as a private, and not a common, carrier: Monographic note to Louisville etc. R. Co. v. Church, ante, p. 29.

III Whether Same Liability Attaches to Carrier of Livestock as to Carrier of Inanimate Freight.

a. Various Rules Announced by the Courts.

1. Rule Where Carrier is not Regarded as a Common Carrier.-In Michigan, where the carrier of livestock is not regarded as a common carrier, the court, in laying down the rule of liability of the carrier in such cases, said: "Plaintiff assumed all the ordinary risks of transportation, and all injury which resulted from the cramped and crowded condition of the cattle, from their restiveness, viciousness, exhaustion, hunger and thirst during their transportation, and also from the jars and concussions incident to starting and stopping the train.

"The defendant owed the duty to transport the car and its contents with ordinary prudence, skill and care, and with reasonable dispatch. It was understood, and was a part of the contract, that the car was to be transported within the usual time of from twenty-four to thirtytwo hours, and that the defendant was under no obligation to unload, water and feed the cattle if transported within that time. Upon ascertaining that plaintiff had no one in charge of the cattle, it would undoubtedly have been the duty of the defendant to unload and water and feed them, when, from any cause, it was unable to transport and deliver them within the usual time": Heller v. Chicago ete. Ry. Co., 109 Mich. 53, 63 Am. St. Rep. 541, 66 N. W. 667.

A carrier transporting livestock is bound only to transport it with reasonable dispatch, and the shipper assumes the risk of unavoidable accidents and delays: McKenzie v. Michigan Cent. R. Co., 137 Mich. 112, 100 N. W. 260.

2. Rule Applying Law Applicable to Carriage of Inanimate Freight. In the principal case (Stiles v. Louisville etc. R. Co., 129 Ky. 175, ante, p. 429, 110 S. W. 820, 18 L. R. A., N. S., 86) the sole question was whether the common-law rule as to the liability of a common carrier for inanimate freight prevailed in respect to livestock. The court declared in favor of the rule prevailing as to inanimate freight, but expressly stated that that rule should be followed with certain qualifications in respect to losses arising from the inherent propensities of the animals transported. In the principal case the livestock were destroyed by a conflagration which destroyed the

cars in which they were being transported. The court, in holding the carrier to be an insurer under the circumstances, observed, however, that where the injury arises from the natural infirmity or vice of the animals, the question of negligence or care on the part of the carrier arises.

Although the principal case declared that a carrier is an insurer of livestock transported by it, the rule of liability for loss or injury does not appear to have been changed from that announced in previous cases in Kentucky. The exceptions to the rule of insurer announced in the principal case leaves the rule in the same condition as it was as a matter of fact: Louisville etc. R. Co. v. Hedger, 9 Bush, 645, 15 Am. Rep. 740; Rhodes v. Louisville & N. R. Co., 9 Bush, 688; Louisville & N. R. Co. v. Harned, 23 Ky. Law Rep. 1651, 66 S. W. 25; Louisville & N. R. Co. v. Wuthen, 23 Ky. Law Rep. 2128, 66 S. W. 714; Louisville & N. R. Co. v. Warfield, 30 Ky. Law Rep. 352, 98 S. W. 313; Cincinnati etc. R. Co. v. Greening, 30 Ky. Law Rep. 1180, 100 S. W. 825.

A common carrier is an insurer for the safe delivery of livestock, and is liable for every loss which cannot be attributed to the act of God, the public enemy, the act of the owner or the vicious propensities or inherent character of the animals themselves: St. Louis & S. E. R. Co. v. Dorman, 72 Ill. 504; Burke v. United States Express Co., 87 Ill. App. 505; Chicago etc. Ry. Co. v. Slattery, 76 Neb. 721, 124 Am. St. Rep. 825, 107 N. W. 1045; Missouri Pac. R. Co. v. Harris, 67 Tex. 166, 2 S. W. 574; Gulf etc. R. Co. v. Trawick, 68 Tex. 314, 2 Am. St. Rep. 494, 4 S. W. 567; International & G. N. R. Co. v. Parish, 18 Tex. Civ. App. 130, 43 S. W. 1066. In Hart v. Chicago etc. Ry. Co., 69 Iowa, 485, 29 N. W. 597, the court said: "The carrier is held to be an insurer of the safety of the property while he has it in his possession as a carrier. His undertaking for the care and safety of the property arises by implication of law out of the contract for its carriage. The rule which holds him to be an insurer of the property is founded upon considerations of public policy. The reason of the rule is that as the carrier ordinarily has the absolute possession and control of the property while it is in course of shipment, he has the most tempting opportunities for embezzlement or for fraudulent collusion with others. If it is lost or destroyed while in his custody, the policy of the law therefore imposes the loss upon him: Cogg v. Bernard, 2 Ld. Raym. 909; Forward v. Pittard, 1 Durn. & E. 27; Riley v. Horne, 5 Bing. 217; Thomas v. Boston & P. Ry. Co., 10 Met. 472, 43 Am. Dec. 444; Roberts v. Turner, 12 Johns. 232, 7 Am. Dec. 317; Moses v. Boston & M. Ry. Co., 24 N. H. 71, 55 Am. Dec. 222; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42. His undertaking for the safety of the property, however, is not absolute. He has never been held to be an insurer against injuries occasioned by the act of God or the public enemy, and there is no reason why he should be; and it is equally clear, we think, that there is no consideration of policy which demands that he should be held to account to the owner for an injury which is occasioned by the owner's own

1

act; and whether the act of the owner by which the injury was caused amounted to negligence is immaterial also. If the immediate cause of the loss was the act of the owner, as between the parties absolute justice demands that the loss should fall upon him, rather than upon the one who has been guilty of no wrong, and it can make no difference that the act cannot be said to be either wrongful or negligent. If, then, the fire which occasioned the loss in question was ignited by the lantern which plaintiff's servant, by his direction, took into the car, and which, at the time, was in the exclusive control and care of the servant, defendant is not liable, and the question whether the servant handled it carefully or otherwise is not material.” In other words, the carrier is relieved from liability if it can show that it provided all suitable means of transportation and exercised that degree of care which the nature of the property required: Indianapolis etc. R. Co. v. Jurey, 8 Ill. App. 160.

The carrier is not liable for injury to livestock by reason of sickness contracted by reason of severe storms where it has done all that it could to prevent injury, since the proximate cause is an act of God: Herring v. Chesapeake etc. R. Co., 101 Va. 778, 45 S. E. 322. So, also, where the death of an animal which is being transported is caused by an attack of meningitis, the carrier is not liable where it does all in its power to protect the animal after being so attacked: Klair v. Wilmington S. Co., 4 Penne. (Del.) 51, 54 Atl. 694. In St. Louis etc. R. Co. v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131, the court said: "In this state a carrier assumes the same degree of liability in the carriage of livestock as it does in any other class of freight, subject to such exceptions, on account of the inherent nature of the property, as justice and common fairness would impose: Missouri Pac. Ry. v. Harris, 67 Tex, 166, 2 S. W. 574.

"We know of no established rule by which to determine with exactness in every case what injuries furnish, from their mere presence, prima facie evidence of negligence and those that do not. But we feel sure that the mere fact that an animal apparently sound when delivered for shipment arrives at its destination sick with a disorder, such as pneumonia, should not raise the presumption that the carrier had been guilty of negligence which caused it: Weed v. International & G. N. Ry., 21 Tex. Civ. App. 689, 53 S. W. 356; Louisville & N. Ry. Co. v. Wuthen (Ky.), 49 S. W. 185, 66 S. W. 714; Hussey v. Saragorsa, 3 Woods C. C. (U. S.) 380, Fed. Cas. No. 6949; New York L. E. & W. R. R. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. Rep. 444, 37 L. ed. 292; Long v. Pennsylvania Ry. Co., 147 Pa. 343, 30 Am. St. Rep. 732, 23 Atl. 459, 14 L. R. A. 741; Schaeffer v. Philadelphia & R. R. R., 168 Pa. 209, 47 Am. St. Rep. 884, 31 Atl. 1088; Pennsylvania Ry. Co. v. Raiordon, 119 Pa. 577, 4 Am. St. Rep. 670, 13 Atl. 324. Pneumonia is a well-known and malignant disease, attacking both man and beast at times when least expected, and frequently under conditions which shroud its cause and beginning in mystery. Medical science has not yet reached that stage where it can, with any degree of certainty, predict or prevent its development in animated beings. Appellees

alleged in their petition the nature of this animal's disorder, and thereby assumed the burden of proving negligence on the part of appellant as the cause of the disease. If the appellees have failed to adduce evidence sufficient to justify a jury in finding that appellant's negligence caused this mule to contract and die of this disease, then the court committed reversible error in even submitting the issue."

3. Rule Relieving Liability for Injuries or Losses from Natural Propensities of the Livestock.-The general rule of absolute liability of a common carrier for the safe delivery of property committed to it for transportation is qualified when applied to livestock, and made subject to the exception that it is not an insurer against injury or loss resulting from the inherent nature, propensities, habits or vices of the animals transported: Central R. & Bkg. Co. v. Smitha, 85 Ala. 47, 4 South. 708; Western Ry. of Ala. v. Harwell, 91 Ala. 340, 8 South. 649; Louisville etc. R. Co. v. Smitha, 145 Ala. 686, 40 South. 117; St. Louis etc. R. Co. v. Lesser, 46 Ark. 236; St. Louis etc. R. Co. v. Kilberry, 83 Ark. 87, 102 S. W. 894; Agnew v. The Contra Costa, 27 Cal. 425, 87 Am. Dec. 87; Union Pac. R. Co. v. Rainey, 19 Colo. 225, 34 Pac. 986; Coupland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534; Summerlin v. Seaboard Air Line Ry., 56 Fla. 687, 47 South. 557, 19 L. R. A., N. S., 191; Georgia R. Co. v. Spears, 66 Ga. 485, 42 Am. Rep. 81; Cooper v. Raleigh & G. R. Co., 110 Ga. 659, 36 S. E. 240; Georgia etc. R. Co. v. Greer, 2 Ga. App. 516, 58 S. E. 782; Wabash etc. R. Co. v. McCasland, 11 Ill. App. 491; Burke v. United States Express Co., 87 Ill. App. 505; Kinnick v. Chicago etc. R. Co., 69 Iowa, 665, 29 N. W. 772; Betts v. Chicago etc. Ry. Co., 92 Iowa, 343, 54 Am. St. Rep. 558, 60 N. W. 623, 26 L. R. A. 248; Stiles v. Louisville etc. R. Co., 129 Ky. 175, ante, p. 429, 110 S. W. 820, 18 L. R. A., N. S., 86; Dow v. Portland Steam Packet Co., 84 Me. 490, 24 Atl. 945; Smith v. New Haven & N. R. Co., 12 Allen, 531, 90 Am. Dec. 166; Evans v. Fitchburg R. Co., 111 Mass. 142, 15 Am. Rep. 19; Heller v. Chicago & G. T. Ry. Co., 109 Mich. 53, 63 Am. St. Rep. 541, 66 N. W. 667; Lindsley v. Chicago etc. Ry. Co., 36 Minn. 539, 1 Am. St. Rẹp. 692, 33 N. W. 7; Illinois Cent. R. Co. v. Teams, 75 Miss. 147, 21 South. 706; Cash v. Wabash R. Co., 81 Mo. App. 109; Lackland v. Chicago etc. R. Co., 101 Mo. App. 420, 74 S. W. 505; McFall v. Wabash R. Co., 117 Mo. App. 477, 94 S. W. 570; Black v. Chicago B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428; Cleve v. Chicago B. & Q. Ry. Co., 77 Neb. 166, 124 Am. St. Rep. 837, 108 N. W. 982; Church v. Chicago B. & Q. R. Co., 81 Neb. 615, 116 N. W. 520; Lewis v. Pennsylvania R. Co., 70 N. J. L. 132, 56 Atl. 128, affirmed in 71 N. J. L. 339, 59 Atl. 1117; Mynard v. Syracuse etc. R. Co., 71 N. Y. 180, 27 Am. Rep. 28; Giblin v. National Steamship Co., 8 Misc. Rep. 22, 28 N. Y. Supp. 69, affirmed in 152 N. Y. 633, 46 N. E. 1147; Waldron v. Fargo, 170 N. Y. 130, 62 N. E. 1077; Selby v. Wilmington & W. R. Co., 113 N. C. 588, 37 Am. St. Rep. 635, 18 S. E. 88; Louisville etc. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; International etc. R. Co. v. Young (Tex. Civ. App.), 72 S. W. 68;

Texas etc. Ry. Co. v. Snyder (Tex. Civ. App.), 86 S. W. 1041; International etc. R. Co. v. Nowaski (Tex. Civ. App.), 106 S. W. 437; Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 5 Am. St. Rep. 226, 37 N. W. 432; Abrams v. Milwaukee etc. R. Co., 87 Wis. 485, 41 Am. St. Rep. 55, 58 N. W. 780; John Schroeder Lumber Co. v. Chicago ete. Ry. Co., 135 Wis. 575, 128 Am. St. Rep. 1039, 116 N. W. 179; Chicago B. & Q. R. Co. v. Morris, 16 Wyo. 308, 93 Pac. 664; note to Clarke v. Rochester etc. R. Co., 67 Am. Dec. 210.

The above statement of the rule is the one most frequently announced by the courts. It is generally regarded as an additional exception attached to the rule that a common carrier is an insurer. The various reasons assigned by the courts for this rule will be discussed in the following subdivision.

b. Reasons for Application of Different Rule than to Inanimate Freight. In the majority of cases the courts content themselves with merely stating the rule which they hold in respect to livestock shipments without commenting upon the reasons for the rule.

In a general way the courts declare that the same rule of responsi bility does not attend the transportation of livestock which attends the carriage of inanimate freight because of the injuries likely to follow in consequence of their own vitality and inherent propensities: Lewis v. Pennsylvania R. Co., 70 N. J. L. 132, 56 Atl. 128; Missouri etc. Ry. Co. v. Lewellen (Tex. Civ. App.), 111 S. W. 773; North Pa. etc. R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. Rep. 266, 31 L. ed. 287.

In Boehl v. Chicago etc. Ry. Co., 44 Minn. 191, 46 N. W. 333, the court said: "Carriers of livestock are liable as common carriers for damages or injuries thereto arising during the transportation, except such as, without the fault or negligence of the carrier, result from the vitality of the freight; that is to say, the nature and propensity of animals to injure themselves or each other, their unruliness, restiveness, fright, viciousness, kicking or goring, etc. The carrier is relieved from liability for injuries from such causes, if he has provided suitable means of transportation, and exercised that degree of care which the nature of the property requires, or has not otherwise contributed to the injury. Of course, the carrier is relieved from special care and oversight of the animals, where the owner or agent accompanies them for that purpose: Angell on Carriers, sec. 214 et seq.; Hutchinson on Carriers, sec. 217; Clarke v. Railroad Co., 67 Am. Dec. 210; Evans v. Fitchburg R. R. Co., 111 Mass. 142, 15 Am. Rep. 19; 3 Am. & Eng. Ency. of Law, 6; Moulton v. St. Paul M. & M. Ry. Co., 31 Minn. 85, 47 Am. Rep. 781, 16 N. W. 497; 2 Wait on Actions and Defenses, 32. But if the injury or loss arise in whole or in part from the carrier's negligence, without the fault or concurring negligence of the owner or his agent, or from extrinsic causes other than inevitable accident, the carrier is liable as in other cases."

In Evans v. Fitchburg R. Co., 111 Mass. 142, 15 Am. Rep. 19, the court, in laying down the rule applicable to shipments of this char