mediate station, a refusal to do so, although there was a reasonable opportunity to have complied with the shipper's wish, rendered the railroad company liable.55 Sec. 640. Shipper may assume duty by contract to care for live stock in transit.-The care of live stock while being transported is a mere incident to its transportation, and the liability of transportation agencies to afford such care accrues to them merely as bailees, in common with other bailees, and not strictly as common carriers. They are therefore permitted to contract against this liability, and it is well settled that a common carrier may contract that the shipper shall accompany his live stock, unload, water and feed it. And where the shipper so contracts to care for his stock, damages resulting from his failure to comply with the contract cannot ordinarily be recovered from the carrier, although it seems that there should be a consideration in the form of a reduced rate or otherwise for this assumption of risk by the shipper.56 Sec. 641. Same subject-But carrier must afford shipper reasonable opportunity and facilities for performing his contract. But even though, by virtue of the contract under which the animals are carried, it is the duty of the shipper to attend the animals, provide for their wants and protect them from injury to themselves, yet if the carrier fails or refuses to furnish the shipper reasonable opportunities and facilities for perform 55. Coupland v. Railroad Co., 61 Conn. 531, 23 Atl. Rep. 870, 15 L. R. A. 534. 56. Railway Co. v. James, 117 Ga. 832, 45 S. E. Rep. 223; Railroad Co. v. Cauthen, 115 Ga. 422, 41 S. E. Rep. 653; Railway Co. v. Rogers, 111 Ga. 865, 36 S. E. Rep. 946; Georgia R. & B. Co. v. Reid, 91 Ga. 377, 17 S. E. Rep. 934; Boaz v. Railroad Co., 87 Ga. 463, 13 S. E. Rep. 711; Grieve v. Railroad Co., 104 Iowa, 659, 74 N. W. Rep. 192; Hengstler v. Railroad Co., 125 Mich. 530, 84 N. W. Rep. 1067; Duvenick v. Railroad Co., 57 Mo. But the failure of the shipper to accompany his stock as he has agreed to do is not a defense to an action against the carrier, unless ing the duties which he has undertaken, the carrier will be liable for the injury thereby sustained.57 The affording of reasonable opportunities for rest, food and water, however, does not mean that the carrier is required to afford such opportunities upon a mere request by the shipper without regard to the reasonableness or necessity of the demand.58 Sec. 642. The failure of the shipper to furnish a caretaker does not excuse any subsequent negligence on the part of the carrier. The fact that the shipper of live stock agrees to furnish a care-taker, and fails to do so, does not exonerate the carrier from a performance of the contract on his part. The carrier is still bound to carry the stock to destination without unreasonable delay. And since the agreement to be performed by the shipper does not go to the whole or a substantial part of the consideration of the contract, and is not precedent to the obligation of the carrier to transport the stock, the failure of such failure has contributed to the 57. Nashville, etc., Ry. Co. v. Civ. App.), 78 S. W. Rep. 1080; Railway Co. v. Byers Bros., 7 Tex. Ct. Rep. 244, 73 S. W. Rep. 427; Railway Co. v. Leibold (Tex. Civ. App.), 55 S. W. Rep. 368; Railway Co. v. Gann, 8 Tex. Civ. App. 620, 28 S. W. Rep. 349; Railway Co. v. Ivey (Tex. Civ. App.), 23 S. W. Rep. 321; Railway Co. v. Bank, 92 Va. 495, 23 S. E. Rep. 935, 44 L. R. A. 449; Burns v. Railway Co., 104 Wis. 646, 80 N. W. Rep. 927; Abrams v. Railway Co., 87 Wis. 485, 58 N. W. Rep. 780, 41 Am. St. Rep. 55; Olds v. Railroad Co., 94 N. Y. 924. The carrier is liable if he does not give sufficient time or opportunity to care for the stock or if he misleads the shipper into believing that the brakemen are caring for it. Dawson v. Railway Co., 76 Mo. 514. 58. Railway Co. v. Clark (Tex. Civ. App.), 79 S. W. Rep. 827. the shipper to perform his agreement will not excuse the carrier from caring for the stock and unloading it at the shipper's expense.59 If, therefore, the carrier has knowledge of the failure of the shipper to furnish a care-taker, his omission to care for the stock at the shipper's expense will be such negligence as will render him liable for any resulting injuries.60 But knowledge on the part of the carrier that the shipper has omitted to furnish a care-taker is essential to charge him with liability for a failure to care for the stock; and such liability cannot therefore commence until the carrier has actual notice, or learns of such other facts as would lead a reasonable person to infer that a care-taker has not been furnished. Sec. 643. Carrier liable for his negligence in loading or unloading stock notwithstanding contract that shipper shall do so-Effect of negligence by shipper.-If, notwithstanding a provision in the bill of lading that the shipper shall load and unload his stock, the carrier himself undertakes to do so, he will be liable if injuries result through his negligent performance of the act.1 And the fact that the shipper is present at the time will be immaterial.2 So if the shipper voluntarily, or in accordance with the contract, undertakes to oversee and care for his stock during transportation, he cannot recover for injuries arising through his negligence in caring for the stock, though the contract in no manner exempts the carrier from liability.3 59. Spalding v. Railroad Co., 101 Mo. App. 225, 73 S. W. Rep. 274. 60. Milan v. Railway Co., 58 S. C. 247, 36 S. E. Rep. 571; Railroad Co. v. Williams, 61 Neb. 608, 85 N. W. Rep. 832, 55 L. R. A. 289; Chicago, etc., Ry. Co. v. Slattery, Neb. , 107 N. W. Rep. 1045. See also Railway Co. v. Sanders & Russell, 25 Ky. L. Rep. 2333, 80 S. W. Rep. 488. If the carrier has knowledge that the shipper is not accompanying his stock, he must give the stock proper attention. Louisville, 1. Normile v. Railroad & Navigation Co., 41 Ore. 177, 69 Pac. Rep. 928; Railway Co. v. Kingsbury (Tex. Civ. App.), 25 S. W. Rep. 322; Railway Co. v. Dolan (Tex. Civ. App.), 85 S. W. Rep. 302; Railway Co. v. White (Tex. Civ. App.), 80 S. W. Rep. 641. 2. Railroad Co. v. Sutherland, 89 Va. 703, 17 S. E. Rep. 127. 3. Burgher v. Railroad Co., 105 Iowa, 335, 75 N. W. Rep. 192. Sec. 644. Negligent delay by carrier ordinarily no excuse to shipper for refusing to comply with his contract to care for the stock. A negligent delay by the carrier in transporting the stock will ordinarily afford the shipper no excuse for abandoning his special undertaking to care for the stock. It would be the duty of the shipper, under such circumstances, to avoid as far as possible, by the use of such reasonable means as are at his command, the consequences of the carrier's negligent delay; and he would only be excused from the performance of this duty where the reasonable cost of the means at his command, added to the damages which would probably not be averted by their use, would equal or exceed the damages which could reasonably be expected to flow from the negligent delay.1 Sec. 645. (§ 323.) Duty of carrier in general to avert injury to goods transported.-Safe custody of the property intrusted to him is as much the duty of the carrier as its conveyance and delivery. His contract is to deliver in good order, and if the vessel upon which the goods are being carried is stranded, or if there be an interruption of any kind, so that he cannot proceed with his journey, whether it be by land or by sea, he is bound to use all the means at his command, and all possible diligence for their preservation; and if they become injured, for the want of such efforts to preserve them, the loss will be attributed to his negligence, and not to the immediate or proximate cause of the loss or injury. And when the vessel upon which the goods are being carried is disabled, and the goods are of too perishable a nature to await her repair, it is the duty of the master to procure another vessel if it can be done, and transport them at once to destination; and in that 4. Railway Co. v. Daggett, 87 Tex. 322, 28 S. W. Rep. 525, reversing (Tex. Civ. App.), 27 S. W. Rep. 186; see also Railway Co. v. Arnold, 16 Tex. Civ. App. 74, 40 S. W. Rep. 829. 5. See ante, §§ 5, 278, 309. Where the shipper gives direc tions to ice a car containing meat, if there is an unreasonable delay in transporting the car, the carrier would be bound, if necessary to preserve its contents, to ice the car. Railroad Co. v. Dorsey, 30 Tex. Civ. App. 377, 70 S. W. Rep. 575. event, he will be entitled to charge the goods with the increased expense of their preservation.G Sec. 646. (§ 324.) Same subject-The rule stated.—In short, the conclusion to be drawn from all the cases upon this subject is, that whenever the situation or condition of the goods, from accident or from any cause, becomes such as to require especial care or attention, the carrier must put himself in the place of their owner, and do for them all that might reasonably be expected of a prudent and careful person, and if necessary, it would be his duty to incur any expense in their preservation which their value would justify, and which their condition might make necessary. His contract and his obligation is not only to carry the goods, but to carry them safely; and when they become exposed to the danger of deterioration or destruction from their own inherent infirmity or from any cause for which the carrier is not accountable, the law makes it his duty to employ at least a reasonable degree of skill and diligence to preserve them, and if he fail to do so, it will be accounted negligence, and he will be liable for the loss, though the actual proximate cause of it may be one for which, but for his negligence, he would be in no wise responsible. But a reasonable degree of care and diligence under the circumstances as they then present themselves is all that can be required. "There is an ex post facto wisdom," say the supreme court of Ohio, "which, after everything has been done without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith and with judgment exercised under the best lights afforded." Sec. 647. (§ 325.) But the carrier is not bound to suspend his voyage to preserve the goods. The carrier is not, however, compelled to suspend or delay his voyage in order to bestow such needed care upon the goods. Where wheat was being 6. Propeller Niagara v. Cordes, 21 How. 7. 7. Express Co. v. Smith, 33 Ohio St. 511. |