suitable vehicles for the transportation of property cannot be shirked or shifted: Jones v. St. Louis etc. R. Co., 115 Mo. App. 232, 91 S. W. 158. Where a railway company undertakes to transport fruit or other perishable goods in a properly iced refrigerator-car, it cannot escape liability by showing that the refrigerator-cars were owned by another company which had undertaken to furnish suitable cars for that purpose: St. Louis, Iron Mt. etc. Ry. Co. v. Renfroe, 82 Ark. 143, 118 Am. St. Rep. 58, 100 S. W. 889, 10 L. R. A., N. S., 317; Taft Co. v. American Express Co., 133 Iowa, 522, 119 Am. St. Rep. 642, 110 N. W. 897, 10 L. R. A., N. S., 614; Mathis v. Southern R. Co., 65 S. C. 271, 43 S. E. 684, 61 L. R. A. 824; New York etc. R. Co. v. Cromwell, 98 Va. 227, 81 Am. St. Rep. 722, 35 S. E. 44, 49 L. R. A. 462. But a connecting carrier is not required to keep on hand, at the connecting point, cars of a special kind for forwarding fruit, to meet a possible contingency arising from the defective condition of the ear in which the fruit was originally shipped: Corso v. New Orleans etc. R. Co., 48 La. Ann. 1286, 20 South. 752.

In Continental Fruit Express Co. v. Leas (Tex. Civ. App.), 110 S. W. 129, a brakeman was injured by reason of a defective handhold on a fruit-car furnished by the car company to the railway company. A contract existed between the two companies in respect to the liability for accidents arising from negligence of such a character. The plaintiff recovered against the car owner. The court, in holding that the brakeman was not bound by the agreement between the two companies, said: "The appellant had practically a monopoly of ears suitable for the shipment of fruit or perishable goods, in which it was protected by a patent right-a monopoly of such character that railroad companies, in order to discharge their duties to the public. as common carriers, were forced to accept appellant's own terms in procuring the cars for the transportation of the kind of freight for which they were designed and alone were suitable to carry. While the law compels railway companies to carry such freight, it, by virtue of a patent right, places the control and ownership of the only kind of ears in which it can be transported in the appellant and companies like it, and without attempting to regulate them, as it docs the railroads, leaves the owners of such cars free to prey upon the public by prescribing its own terms and conditions to the railway companies for their use-a power more withering and blighting to the interest of the fruit-grower than a killing frost in June. Under the guise of a contract for hiring its cars to railway companies, it shares with them in the freight for every mile it is carried in its ears over their lines of railway, and reserves the sole right of icing the cars loaded with perishable goods while en route to their des tination at an enormous profit to itself, the railway companies being used as its agent to collect from the owner of the goods appellant's pro rata share of the freight and its charges for icing the cars. Such a company exercises all the functions and enjoys all the privi leges of a common carrier, while it seeks by contract with the rail

roads who haul the cars to avoid its liabilities. In short, by circumstances brought about by its own creation, the appellant has placed itself in such a position with regard to the servants of railways operating their trains that it absolutely knows that if it does not use ordinary care and skill in regard to furnishing cars reasonably safe to be operated, it will cause danger of injury to the servants of the companies operating such trains. Hence, its duty to use ordinary care and to avoid such danger-a duty that the law charges it with, and which it cannot avoid by contract with the railroad companies. It is enough that it is given a monopoly in the only kind of cars that can be used by railroad companies in transporting perishable goods; but it cannot be granted immunity from negligently taking the lives and lopping off the limbs of railway employés engaged in its service while handling its cars and carrying freight in which it shares the profits. The operation of these cars was, in fact, as shown by the evidence, the appellant's business, and the plaintiff, though not its servant by contract, was engaged in furtherance of its business when he was injured, and the duty of appellant to him while in its service was as that of a master to his servant engaged in like employment: Leas v. Continental Express (Tex. Civ. App.), 99 S. W. 859; Penn. R. Co. v. Snyder, 55 Ohio St. 342, 60 Am. St. Rep. 700, 45 N. E. 559; Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103, 15 L. R. A. 818; Philadelphia & W. Ry. Co. v. Hahn (Pa.), 12 Atl. 479."

e. Transportation of Cars Furnished by the Shipper or Hired at His Request.-Although a shipper selects or furnishes the car on which his goods or property is loaded and transported, the railway company is, nevertheless, liable as a common carrier: Fordyce v. MeFlynn, 56 Ark. 424, 19 S. W. 961; Mallory v. Tioga R. Co., 39 Barb. 488; Louisville & N. R. R. Co. v. Dies, 91 Tenn. 177, 30 Am. St. Rep. 871, 18 S. W. 266; Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. ed. 423. And where a railway company takes a car with a narrower gauge than its own tracks for transportation, it assumes liability for damages caused by that fact: Pennsylvania R. Co. v. New Jersey etc. Co., 27 N. J. L. 100.

But where a car is one belonging to another railway company, selected by the shipper, he refusing to use the cars of the defendant railway company for his shipment, the defendant is not responsible for a loss caused by a defect in the car selected if it did not know of such defect at the time of its selection: Illinois Cent. R. Co. v. Hall, 58 Ill. 409. If a railway company does not hold itself out as a carrier of perishable goods, and merely agrees to procure refrigerator-cars for the transportation of such goods, and the shipper has knowledge that the contract for the icing of the car was made with the company owning the car on behalf of the shipper, his recourse for a failure to ice the car is against the refrigerator-car owner and not the railway company: McConnell v. Southern Ry. Co., 144 N. C. 87, 56 S. E. 559.

1. Transportation by Connecting Carrier of Cars of Initial Carrier. It is the duty of a railway company to inspect its cars before the train is made up, and ascertain whether they are in proper condition so far as a reasonable inspection will demonstrate that condition: Robinson v. Chicago etc. R. Co., 135 Mich. 254, 97 N. W. 689. It is likewise the duty of a connecting carrier to inspect the cars of other roads received by it for transportation. The connecting carrier is liable to the same extent as if the cars were his own. When it uses such ears it adopts and makes them its own for purposes of transportation: Missouri etc. Ry. Co. v. Merrill, 65 Kan. 436, 93 Am. St. Rep. 237, 70 Pac. 358, 59 L. R. A. 711; Western Maryland R. Co. v. State, 95 Md. 637, 53 Atl. 969; Mackin v. Boston etc. R. R., 135 Mass. 201, 46 Am. Rep. 456; Fowles v. Briggs, 116 Mich. 425, 72 Am. St. Rep. 537, 74 N. W. 1046, 40 L. R. A. 548; Lellis v. Michigan Cent. Ry. Co., 124 Mich. 37, 87 N. W. 828, 70 L. R. A. 598; Moon v. Northern Pacific R. Co., 46 Minn. 106, 24 Am. St. Rep. 194, 48 N. W. 679; Shea v. Chicago etc. Ry. Co., 66 Minn. 102, 68 N. W. 608; Eaton v. New York Cent. R. Co., 163 N. Y. 391, 79 Am. St. Rep. 600, 57 N. E. 609; Pennsylvania R. Co. v. Snyder, 55 Ohio St. 342. 60 Am. St. Rep. 700, 45 N. E. 559; Continental Fruit Express v. Leas (Tex. Civ.), 110 S. W. 129; Reynolds v. Boston etc. R. Co., 64 Vt. 66, 33 Am. St. Rep. 908, 24 Atl. 134; Texas & P. R. Co. v. Achibald, 170 U. S. 665, 18 Sup. Ct. Rep. 777, 42 L. ed. 1188. And where a carrier undertakes to transport perishable goods, the fact that the car containing the goods when received from the previous carrier was sealed is no excuse for not safely transporting the goods: Beard v. Illinois Cent. Ry. Co., 79 Iowa, 518, 18 Am. St. Rep. 381, 44 N. W. 800, 7 L. R. A. 280. A constitutional provision requiring one railway company to receive and transport over its lines the ears of another company does not compel it to receive cars which are in a defective and unsafe condition: Louisville etc. R. Co. v. Williams, 95 Ky. 199, 44 Am. St. Rep. 214, 24 S. W. 1.

V. Whether an Injured Employé of the Car Owner is Bound by a Contract Eetween Such Owner and the Railway Company Exempting the Latter from Liability Therefor.

The question whether a contract exempting a railway company from any liability arising from the transportation of cars not owned by it, and which it is under no duty to transport as a common carrier, will bind an employé of the car owners has arisen in several cases. In Clough v. Grand Trunk etc. Ry. Co., 155 Fed. 81, 11 L. R. A.. N. S., 446, decided by the United States circuit court of appeals, the question was very clearly discussed by Judge Lurton, who distinguished such cases from the express messenger cases. He said: "If the contract under which the Wallace circus was being transported over the railway of the defendant was a valid contract, the relation of the railway company to the circus company was not that of a common carrier at all. That the railway company was under no common-law obligation to move the circus company over its line

in the manner in which it was being transported at the time of the injury to the plaintiff in error must be conceded. If the railway company was under no statutory or common-law obligation to render the special service it was called upon to render, there were no reasons of public policy which forbade the rendition of such service upon such terms as the parties might stipulate. The right to make special stipulation under such conditions has been recognized and applied in a number of cases substantially like the case at bar, where circus trains were hauled under special agreements relieving the company from carrier's liability: Coup v. Wabash etc. Ry. Co., 56 Mich. 111, 56 Am. Rep. 374, 22 N. W. 215; Forepaugh v. Delaware etc. Ry. Co., 128 Pa. 217, 15 Am. St. Rep. 672, 18 Atl. 503, 5 L. R. A. 508; Robertson v. Old Colony R. R. Co., 156 Mass. 525, 32 Am. St. Rep. 482, 31 N. E. 650; Chicago M. etc. Ry. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Wilson v. Atlantic C. L. R. R. Co. (C. C.), 129 Fed. 774. The same freedom of contract in respect to the transportation of express matter and express messengers has been recognized repeatedly: Baltimore & O. Ry. v. Voigt, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. ed. 560, and cases therein cited.

"But it is urged with much force that Clough, the injured plaintiff in error, was not a party to the contract between the circus proprietors and the railway company, and therefore not affected by it. It has been said also that he neither agreed to relieve the railway company from liability for negligence while being carried upon the circus train nor bargained away by any agreement with the circus company his right to hold the railway company or the circus company liable for any negligence by which he might be injured while being transported as an employé of the latter. Upon these grounds it has been urged that the Voigt case has no application, because there the messenger had expressly assumed in his contract with the express company the risk of all injury he might sustain while in its service, and to assume and ratify any agreement the express company had made or might make releasing any transportation company from liability to any of its employés. It is unnecessary to consider whether an express messenger's right of action to recover for carrier's negligence would depend upon any personal agreement made by him. In the Voigt case the messenger's release to the express company was a fact in the case, and as that inured to the benefit of the railway company, it was unnecessary to go further. See, also, Long v. Lehigh Valley Co., 130 Fed. 870, 65 C. C. A. 354, where it was held that the messenger would be presumed to know and assent to any contract between the express company and the railway company under which he was to be transported.

"In Brewer v. New York etc. R. Co., 124 N. Y. 59, 21 Am. St. Rep. 647, 26 N. E. 324, 11 L. R. A. 483, it was held that the messenger was not affected by the contract between the express company and the railway company by which he was made to assume the hazard of his carriage, he having no knowledge of the contract.

"The express messenger cases are all distinguishable from the case at bar in the character of the service which the railway company undertook to render. In the express company case the car in which the express matter was carried and the messenger traveled was furnished by the railway company, and the car itself was part of a train under the exclusive control of the carrier. Under the contract here involved, the trains were made of cars furnished and loaded by the circus company. These trains were pulled by engines which were the general property of the railway company, but the special property of the circus company under a contract of hiring. The trains were to be hauled over the tracks of the defendant in error, bat only upon a special contract for the use of the tracks to the extent necessary. The engine and the train were under the control of servants of the railway company, but under a contract by which they became, for the purpose of moving this train, the special servants acting under order and directions and in behalf of the eireus company. . . . . The plaintiff paid no fare, and his only right apon the train was by virtue of the contract and arrangement which his employers had with the railway company. By the terms of that agreement his employers assumed all risks of transportation and undertook themselves as hirers of motive power to move their train under trackage rights acquired under same agreement. As the relation of passenger and carrier did not exist between plaintiff and the railway company, an action for negligence based only upon that relationship cannot be maintained."

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A similar rule was announced by the supreme court of Indiana in Cleveland etc. Ry. Co. v. Henry, 170 Ind. 94, 83 N. E. 710, under a similar contract with a traveling show company. Mr. Justice Hadley, speaking for the court, said: "If appellant was under no duty as a public carrier to convey the show-cars, it had the right, as a private carrier, to name the conditions upon which it would undertake it. The decedent, when he embarked upon these cars, could not shut his eyes to the fact that their transportation to Crawfordsville would be the act of a private carrier. The character of the ears; their unsuitableness for general commercial uses; their peculiar construction; their occupancy solely by the outfit of a private business; their movement, involving the use of a locomotive, engineer, and train crew in the service of the railroad company; the right to carriage without the payment of fare-in all created Such a state of appearances as would convey notice to all employés of the show company that the drawing of the cars from place to place over its railroad was no part of the company's ordinary busi ness, nor in the capacity of a common carrier, and was under a special contract of some sort, between the railroad company and the stow company. Being so advised, it was the duty of the decode" investigate for himself with respect to the nature of the contra as was said by this court in Webb v. Insurance Co. (1903), 162 Ind at page 635, 69 N. E., at 1013 (66 L. R. A. 632): 'Where one has Am. St. Rep., Vol. 130—