U. S., XXI., 301); 2 Kent, Com., 12th ed., 604, and n.

The law of Massachusetts, where this case was tried, is explicit to this effect.

Nutting v. Connecticut River Railroad,1 Gray, 502; Darling v. Boston & Worcester Railroad, 11 Allen, 295; Burroughs v. Norwich & Worcester Railroad, 100 Mass., 26, and cases cited; 2 Redf. Amer. Railw. Cas., 288, et seq.; Redf. Carr., sec. 181, et seq.

No case can be found where the simple acceptance of goods for transportation beyond the terminus of the railroad, under the circumstances stated in this case, has been held as sufficient to render the Railroad Company liable for loss on a connecting railroad, except in those courts which countenance the English rule of a railway's liability. If the evidence in this case is sufficient to authorize a jury to find that there was an implied contract to deliver the horses safely in Boston, the American rule approved by this court is practically overthrown.

It is for the plaintiff in such case to prove the special contract. The liability sought to be imposed on the carrier is extraordinary. If the circumstances of the case show nothing beyond the ordinary case of the acceptance of goods for transportation to a place beyond the Company's terminus, nothing but the ordinary contract can by implied therefrom; otherwise it would be necessary for the Railroad Company to expressly limit its liability when so receiving goods.

The way-bill was a mere direction to the servants of the different railway companies. No copy of it was delivered to the plaintiffs below, and it had no tendency to prove that an express contract had been made to transport the horses through to Boston.

If the plaintiffs relied upon an express contract to transport the horses to Boston, they ought to have shown authority in Graves to make such a contract.

Burroughs v. Norwich and Worcester Railroad, 100 Mass., 26.

Such a contract has been held in Connecticut to be ultra vires.

Hood v. N. Y. & N. H. R. R. Co., 22 Conn., 1. If the plaintiff, knowing the defects in the cars, and that they were unsafe, nevertheless placed his horses therein, he cannot recover in an action like this for injury to them, caused, as this seems to have been, by the defects of which he thus had notice. In an action of tort there would seem to be no reason why the doctrine of contributory negligence should not apply as to other cases of injury caused by negli gence of carriers.

Messrs. Asaph Churchill, Edward L. Pierce and B. W. Harris, for defendant in

error:

The contract of the plaintiff in error to deliver the horses in Boston was not ultra vires.

R. R. Co. v. Harris, 12 Wall., 65 (79 U. S., XX., 354); Noyes v. Rutland & B. R. R. Co., 27 Vt., 110; Morse v. Brainerd, 41 Vt., 550; Perkins v. Portland & Saco R. R. Co., 47 Me.,573; McCluer v. Manchester & L. R. R. Co., 13 Gray, 124; Najac v. Boston and Lowell R. R. Co., 7 Allen., 332; Hill Mfg. Co. v. Boston and Lowell R. R. Co., 104 Mass., 122; Feital v. Middle sex R. R. Co., 109 Mass., 398; Bissell v. Michigan Southern, etc., R. R. Co., 22 N. Y., 258;

| Buffett v. Troy & Boston R. R. Co., 40 N. Y., 168; S. C., 36 Barb., 420; Candee v. Penn, R. R. Co., 21 Wis., 582: Ill. Cent. R. R. Co. v. Copeland, 24 Ill., 332; Cin., H. & D. R. R. Co. v. Pontius, 19 Ohio St., 221; Wheeler v. San Fran. & A. R. R. Co., 31 Cal., 46.

The doctrine that a railroad company has no power to contract for the transportation of freight beyond its termini, is held only in Connecticut, where it is likely to yield to the pressure of the prevailing view.

See, Converse v. Norwich and N. Y. Trans. Co., 33 Conn., 166.

The authorities differ as to the implied contract where a common carrier receives goods directed or consigned to a place beyond the terminus of his line; some holding him prima facie liable only to such terminus, and others holding him prima facie liable to the place to which the goods are booked. The judge at the trial followed the authorities most favorable to the plaintiff in error in his instructions, of which, therefore, it cannot complain.

Whether the plaintiff in error did agree to deliver the horses in Boston, is a question of fact for the jury, whose verdict in favor of the defendant in error on that issue, this court, sitting in error, will not disturb.

It is not an extraordinary contract, but an ordinary and customary one in railroad transportation, and implied from circumstances and the course of business, as well as proved by express agreement.

Redf. Carr., secs. 182, 183; Gray v. Jackson, 51 N. H., 9, and cases cited."

The case of Morse v. Brainerd, 41 Vt., 550, in which the railroad carriers were held, related to the same line of transportation, and is similar in its facts to this case.

The authority of Graves to bind the plaintiff in error by a contract to deliver the horses in Boston, was a question of fact for the jury, and no instructions to which the plaintiff in error was entitled were requested and refused.

Redf. Carr., sec. 199; 2 Redf. Railw., 5th ed., 140.

Whether the evidence as to the authority of Graves was sufficient or not, is not before the court. It has been held by this court that, sitting in error, it will not pass on the weight or sufficiency of evidence or correct the supposed mistakes of juries.

Dirst v. Morris, 14 Wall.,484 (81 U. S., XX., 722); Mills v. Smith, 8 Wall., 27 (75 U. S., XIX., 346).

The common carrier's liability as implied and defined by law, is not diminished except by an express agreement between him and the owner. An exemption from such liability (which is that of an insurer except against the act of God and the public enemy) should not depend upon implication or inference founded on doubtful or conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties. Such an agreement is not implied from knowledge of defective means of conveyance, or acquiescence in their use.

New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., pp. 344, 383; N. J. R. R. Co. v.

Penn. R. R. Co., 3 Dutch., 100; Conway Bank v. American Express Co., 8 Allen, 512; Powell v. Penn. R. R. Co., 32 Pa., 414.

This court has declared itself against any further relaxation of the common law liability of common carriers.

Railroad Co. v. Manufacturing Co., 16 Wall., 318 (83 U. S., XXI., 297); see, Perry v. Thomp son, 98 Mass., 252; R. R. Co. v. Lockwood, 17 Wall., 357 (84 U. S., XXI., 627).

The circuit court was right in its instruction that, "If the carriers furnish unsafe or unfit cars, they are not exempt from liability by the mere fact that the plaintiff knew them to be defective, but accepted and used them. Nothing less than a distinct agreement by the plaintiff to assume that risk would have that effect."

Hannibal R. R. Co. v. Swift, 12 Wall., 262 (79 U. S., XX., 423); Pratt v. Ogdensburg R. R. Co., 102 Mass., 557; Mallory v. Tioga R. R. Co., 39 Barb., 488; Powell v. Penn. R. R. Co., ubi supra; Robinson v. Dunmore, 2 Bos. & P., 416; Hollister v. Nowlen, 19 Wend., 134.

Even an express agreement would not relieve the Company from the consequences of its negligence; and its failure to furnish sufficient cars and to protect them from fire is in itself negligence.

R. R. Co. v. Lockwood, 17 Wall., 357 (84 U. S., XXI., 627); Express Co. v. Kountze, 8 Wall., 342 (75 U. S., XIX..457); Railroad Co. v. Manufacturing Co., 16 Wall., 318 (83 U. S., XXI., 297); Welsh v. Pittsburgh, Fort W. & C. R. R. Co., 10 Ohio St., 65; Indianapolis, P. & C. R. R. Co. v. Allen, 31 Ind., 394; McManus v. Lancashire & Y. R. Co., 4 Hurl. & N., 327, Story, Bail., Bennet's ed., sec. 562, p. 518; Sager v. R. R. Co., 31 Me., 228.

And this is law when the negligence is beyond its own line, under an agreement to carry through.

Cin., H. & D. R. R. Co. v. Pontius, 19 Ohio St., 221.

Is the action defeated by any negligence or act of the defendants in error?

The question of the negligence of the defendants in error was one for the jury, and was properly left to them by the instruction. The general instruction that "If the plaintiffs or either of them by their own negligence or misconduct caused or contributed to the loss, they cannot recover," covered the matter of the request so far as the regulations of the Vermont road could possibly apply to the plaintiffs in error. Notice of such regulation is not to be presumed, but must be proved.

Malone v. Boston & W. R. R. Co., 12 Gray, 388; Perry v. Thompson, 98 Mass., 249, 252.

The mere use of straw, without concealment, even if there had been regulations to the contrary, would not in law be negligence or fraud, or a breach of contract by the defendants in error which would affect their full rights against the carrier. It was for the plaintiff in error, who had full control of its cars, to have kept the straw out, if its knowledge and experience in that business showed its use to be dangerous.

Powell v. Penn. R. R. Co., 32 Pa., 414; Ritz v. Penn. Cent. R. R. Co., cited in Redf. Carr., sec. 231, n.

Mr. Justice Hunt delivered the opinion of the court:

This is an action on the case originally begun in the Superior Court of the Commonwealth of See 22 WALL. U. S., Book 22.

Massachusetts by Pratt and Brigham against the Ogdensburg and Lake Champlain Railroad Company, a Corporation established under the laws of New York, and against the trustees and managers of the Vermont Central and Vermont and Canada Railroad Companies. The action was brought to recover the value of sundry horses killed and injured by fire while being transported from Potsdam in New York to Boston, and when upon the road of the Vermont Central Railroad Company. A verdict was found in the Superior Court for the plaintiffs, which was set aside and a new trial was ordered by the Supreme Court of Massachusetts, upon grounds not now presented. Pratt v. The Ogdensburg and Lake Champlain Railroad Company, 102 Mass., 557. Thereupon the case was removed by the defendants to the Circuit Court of the United States and a new declaration filed. At the trial in the circuit court, the jury found a verdict against the Ogdensburg and Lake Champlain Railroad Company for the sum of $3,919.17, and found a verdict in favor of the other defendants. Judgment was entered upon this verdict, to which the present writ of error is brought.

Nine causes of error are assigned in the brief of the plaintiffs. They present four separate principles, and the questions may be thus stated: 1. Had the Ogdensburg and Lake Champlain Railroad Company power or right to contract as a common carrier to transport the horses to Boston over another railroad and beyond its own terminus?

2. Was there competent evidence given on the trial that the Company did so contract in relation to the horses in question?

3. Did the plaintiffs, by putting their horses into a car which they knew was defective and unsuitable, thereby assume the risk of such effects and relieve the Company from the responsibility of the same?

4. Was there error in admitting in evidence the way-bill made and forwarded with the property by the defendants, or in allowing the witness to state for whom the station agent assumed to act?

First. As to the power of the Railroad Company to contract as a common carrier for the transportation of property beyond the terminus of its own road.

The distinction between the liability of a carrier, in carrying goods upon his own line, and in forwarding them when the duty to carry is at an end, is well defined. In the language of Mr. Justice Davis, in R. R. Co. v. Mfg. Co., 16 Wall., 324 [83 Ú. S., XXI., 301], “It is the duty of the carrier, in the absence of any spe cial contract, to carry safely to the end of his line, and to deliver to the next carrier in the route beyond." What constitutes a sufficient delivery to the succeeding carrier is often a difficult question, but we have no occasion to embarrass ourselves with it here.

The fair result of the American cases limits the carrier's liability as such, when no special contract is made, to his own line, although there are cases which hold the liability as continuing the same throughout the whole route, and such is the English doctrine. A discussion on this point is unnecessary, as the judge on the trial held the rule as we have stated it, and as was most favorable to the defendants. He 52

829

The defendants were an incorporation organ ized under the general railroad law of the State of New York. They possessed the powers given to corporations generally, and were subject to the corresponding liabilities. N. Y. L., 1848, p. 221; N. Y. L., 1850, p. 211.

Assuming the case to stand upon the general principles applicable to the question, the doctrine that a railroad company may subject itself to the obligations of a carrier beyond its own line, has been distinctly held in the State of New York, where this contract was made; in the State of Massachusetts, where its performance was to be completed, and in the State of Vermont, where the alleged injury occurred. Bissell v. R. R. Co., 22 N. Y., 258; Buffett v. R. R. Co., 40 N. Y., 168; Root v. R. R. Co., 45 N. Y., 524; Burtis v. R. R. Co., 24 N. Y., 269; Hill Mfg. Co. v. B. & L. R. R. Co., 104 Mass., 122; Feital v. R. R. Co., 107 Mass., 398; Noyes v. R. R. Co., 27 Vt., 110; Morse v. Brainard, 41 Vt., 550; R. R. Co. v. Mfg. Co., 16 Wall., 324 (83 U. S., XXI., 301]; R. R. Co. v. Androscoggin Mills [ante, 724].

In the case of Burtis v. R. R. Co.,supra, it was held that this principle applied to connecting roads extending beyond the limits of the State. The single exception to this holding, so far as we are aware, is in the State of Connecticut where the contrary has been held by its Supreme Court. Converse v. Trans. Co., 33 Conn., 166; Hood v. R. R. Co., 22 Conn., 502. This case, however, does not stand upon the general principle only. By the statutes of New York (Stat. 1847, 299, sec. 9; 2 R. S., 5th ed., 693, sec. 67), it is enacted as follows: "Any railroad company receiving freight for trans portation shall be entitled to the same rights and subject to the same responsibilities as common carriers. Whenever two or more railroad companies are connected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of said roads so connected shall be liable as common carriers for the delivery of such freight at such place. In case any such company shall become liable to pay any sum by reason of the neglect of any other company or companies, the company paying such sum may collect the same of the company by whose neglect it became so liable." This statute is declared by Rappallo, J., in Root v. R. R. Co. [supra] to be declaratory merely.

We do not see that there is room to doubt the power of the Company to make the contract in question.

Second. Was there evidence in this case that the Ogdensburg and L. C. R. R. Co. did contract as a common carrier to transport this property beyond its own terminus over other roads to Boston ?

The weight, the force or the degree of the evidence is not before us, if there was com petent evidence, on which the jury might law fully find the existence of the contract alleged. Dirst v. Morris, 14 Wall., 484 [81 U. S. XX., 722]; Mills v. Smith, 8 Wall., 27 [75 U. S., XIX., 346].

Both the authority of Graves, the station

of Pratt and others of the making of the contract, were questions of fact for the consideration of the jury. If the jury have found in the plaintiffs' favor on these points, upon evidence legally sufficient to justify it, this court cannot interfere with their findings (authorities supra). The evidence on both these points may properly be considered at the same time. Pratt testified that he had for many years been in the habit of transporting horses over the defendants' road to Boston, to the number of two hundred a year, and that Graves had been the station agent at Potsdam for five or six years; that nearly a week before the present shipment Graves engaged to give him on that day two good stock cars to carry his horses to Boston, and that the cars furnished by Graves had always come over these roads and delivered the horses in Boston, and that the arrangements made by him were recognized by the other roads; that Graves' office was in the Potsdam freight house, and that he paid the freight through, sometimes at Potsdam and sometimes at Boston; that on this occasion he agreed with Graves upon the price through to Boston, viz.: $85 a car, and that a way-bill was made out for the horses and cars to Boston at the price mentioned. Other witnesses give testimony in corroboration, which it is not necessary to refer to. Graves testified that he was the station master at Potsdam, and that the cars were billed from Potsdam to Boston, via Concord, as per bill; that the price agreed upon was not paid in advance, but it might have been.

The way-bill was headed thus: "Way-bill of merchandise transported by Ogdensburg and Lake Champlain Railroad Company from Potsdam Junction to Boston via Cd., March 28th, 1868." It describes the two cars with horses, and as consigned to Pratt & Brigham, at Boston.

We see no sound objection to the admission of this way-bill as evidence. If a written contract, it was not only evidence, but the best evidence of what the contract was. It was exhibited to Pratt before the cars were started, as a part of the transaction.

If not a contract, it was an act done and a declaration made by the agent in the very act of transacting the business, and as a part of it, which brought it within the principle of the res gesta.

This evidence shows that the oral engage ment was "to carry his horses to Boston," not to carry to Rouse's Point and thence to forward to Boston, but "to carry" as well and as fully over the Vermont and Massachusetts roads as over the Ogdensburg road.

Again, a specific price was agreed upon for transportation over the whole route. This was in accordance with the practice, and whether paid at Potsdam or at Boston was unimportant. This practice had been continued for years, and the jury had the right to hold the contract to be the same, without reference to prepayment or postpayment. The jury were justified in inferring that where a carrier fixes a price for transportation over the whole route, that he makes the entire contract his own. One who carries simply over his own line, and thence forwards by other lines, would ordinarily, the jury may say, make or collect his own charges