LIABILITY OF CARRIERS OF LIVE ANIMALS.-There has been some controversy upon the point as to whether or not the liability of carriers of living animals is that of common carriers. The controversy has arisen from the fact that, until recent times, property of this nature was not ordinarily a subject of transportation by land, and therefore the common-law rule respecting the liability of common carriers has been thought by some not to be applicable to such transportation.

CASES IN WHICH LIABILITY OF SUCH CARRIERS HELD NOT TO BE THAT OF COMMON CARRIERS.-In several English cases it has been doubted whether the common-law rule as to the liability of common carriers applied to carriers of live animals: Pardington v. South Wales R. Co., 1 H. & N. 392; S. C., 26 L. J. C. P. 105; 2 Jur., N. S., 1210; McManus v. Lancashire etc. R. Co., 2 H. & N. 693; S. C., 27 L. J. Ex. 201; 4 Jur., N. S., 144. But in other cases the common-law rule of liability has been held to be applicable, in the absence of a special contract limiting the liability: Palmer v. Grand Junction R. Co., 4 Mee. & W. 749; S. C., 7 Dow. P. C. 232; 1 H. & H. 489; 3 Jur. 559. And the question has been substantially put at rest in that country by statute. In a number of American cases, also, the coinmon-law rule of liability has been denied. Thus, it seems to have been established in Michigan that railroad companies engaged in transporting cattle for hire are not liable therefor as common carriers, except where by express contract, or by holding themselves out to the public as common carriers of such property, they have assumed such liability: Michigan etc. R. R. Co. v. McDonough, 21 Mich. 165; S. C., 4 Am. Rep. 466; Lake Shore etc. R. R. Co. v. Perkins, 25 Mich. 329; S. C., 12 Am. Rep. 275. It is held, therefore, in those cases, that in the absence of any such express contract, or "holding out," such carriers are not bound to carry live-stock at all, or otherwise than upon such terms as they may think proper to demand. Those cases further decide that in order to make the carrier liable for the transportation of live-stock as a common carrier, the burden of proof is upon the shipper to show an express or tacit undertaking by the carrier to assume that liability; and that it is not sufficient merely to show a custom by the carrier to transport such property for hire upon terms varying from those applicable to common carriers. The opinion of Mr. Justice Christiancy upon this subject, in Michigan etc. R. R. Co. v. McDonough, supra, is very able and elaborate, and will well repay perusal. In a few other American cases it has been decided that carriers of such property are not liable as common carriers, though they are bound to a very high degree of diligence and care: Louisville etc. R. R. Co. v. Hedger, 9 Bush, 645; S. C., 15 Am. Rep. 740; Indianapolis etc. R. R. Co. v. Jurey, 8 Ill. App. 160. In those cases, however, the result of the rule applied was practically the same as if the common-law rule had been adopted.

GENERAL RULE OF CASES IS that the liability of carriers of live animals is the common-law liability of common carriers of other property. The rule in some of the cases is stated in general terms, without express qualification: Palmer v. Grand Junction R. Co., 4 Mee. & W. 749; S. C., 7 Dow. P. C. 742; 1 H. & H. 489; 3 Jur. 559; St. Louis etc. R. Co. v. Dorman, 72 Ill. 504; Kansas etc. R. Co. v. Reynolds, 8 Kan. 623; Kansas etc. R. Co. v. Nichols, 9 Id 235; S. C., 12 Am. Rep. 494; Philadelphia etc. R. R. Co. v. Lehman, 56 Md. 209; Evans v. Dunbar, 117 Mass. 546; Ritz v. Pennsylvania R. R. Co., 3 Phila. 82; Porterfield v. Humphries, 8 Humph. 497; Kimball v. Rutland etc. R. R. Co., 26 Vt. 247. But as generally laid down, the rule is, that the carrier is liable in such cases, unless otherwise stipulated by contract, to the same extent as common carriers of other property except for losses occasioned

without the carrier's neglect, by the vitality of the freight, that is to say, except for losses arising from their nature and propensities to injure themselves or each other: Lawson on Carriers, 16, 17; Angell on Carriers, secs. 214 et seq.; Hutchinson on Carriers, secs. 217 et seq.; South etc. R. R. Co. v. Henlein, 52 Ala. 606; S. C., 23 Am. Rep. 578; Georgia R. R. v. Spears, 66 Ga. 489; S. C., 42 Am. Rep. 81; Georgia R. R. v. Beatie, 66 Ga. 438; S. C., 42 Am. Rep. 75; McCoy v. Keokuk etc. R. R. Co., 44 Iowa, 424; Smith v. New Haven etc. R. R. Co., 12 Allen, 533; Evans v. Fitchburg R. R. Co., 111 Mass. 142; S. C., 15 Am. Rep. 19; Moulton v. St. Paul etc. R. Co., 31 Minn. 85; S. C., 47 Am. Rep. 781; Rixford v. Smith, 52 N. H. 355; S. C., 13 Am. Rep. 42; Mynard v. Syracuse etc. R. Co., 71 N. Y. 180; S. C., 27 Am. Rep. 28; Bamberg v. South Carolina etc. R. R. Co., 9 S. C. 61; Maslin v. Baltimore etc. R. R. Co., 14 W. Va. 180, and other cases hereinafter cited. This, it will be perceived, is substantially the rule laid down in the principal case. Practically, it matters little whether it be said that the carriers of such freight are liable to the same extent as common carriers of other property, or whether the rule be stated, as in the cases last cited, with the exception of losses arising from the inherent nature and propensities of the animal's character; for the exception is really a part of the rule. With respect to all kinds of property, it is well established that a common carrier is not liable for any loss arising from the infirmity of the article carried, as from the liability of fruit to decay, and the like: Moulton v. St. Paul etc. R. R. Co., 31 Minn. 85; S. C., 47 Am. Rep. 781; Bamberg v. South Carolina etc. R. R. Co., 9 S. C. 61. This general and well-settled exception unquestionably covers the case of animals lost, destroyed, or injured in transportation by their own vices or infirmities. There is much truth, indeed, in the observation of Mr. Justice Willes, in Blower v. Western R. Co., L. R. 7 C. P. 655; S. C., 41 L. J. C. P. 268; 27 L. T., N. S., 883; 20 W. R. 776, that the conflict of opinion found in the authorities respecting the liabilities of carriers of animals " may turn out after all to be a mere controversy of words." In most cases it will be found that whatever may be the form of the rule laid down upon this subject the carrier will be held liable under the same circumstances.

The notion that carriers of live animals are not to be held liable as common carriers, at common law, because such property was not originally a subject of land transportation, is entirely fallacious. The liability of the common carrier does not, and never did, depend upon the nature of the articles carried, but upon the nature of the business: Bamberg v. South Carolina R. R. Co., 9 S. C. 67; Maslin v. Baltimore etc. R. R. Co., 14 W. Va. 188. The carrier was made an insurer of the safety of the articles transported, upon general grounds equally applicable to all classes of property. To say that the common-law rule did not apply to the carriage of animals because such carriage was "unknown to the common law," is as absurd as to say that it does not apply to the transportation of pianos because that too was unknown to the common law: Maslin v. Baltimore etc. R. R. Co., supra. The only well-established exception to the general rule of liability of common carriers, founded upon the nature of the property, is that of the transportation of slaves, as to which the rule was, while that class of property was recognized, that the liability of the carriers of such property was that of a passenger carrier: Boyce v. Anderson, 2 Pet. 150; Williams v Taylor, 4 Port. 238; Clark v. McDonald, 4 McCord, 223. That exception, however, was the result of the anomalous doctrine of property in man. It was a concession that though a man might be property, he was "a man for a' that."

The only one of the United States which has distinctly and unequivocally

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rejected the doctrine that carriers of animals are liable as common carriers, in the absence of an express contract limiting liability, is Michigan. The doctrine in that state is accounted for by Valentine, J., in Kansas etc. R. Co. v. Nichols, 9 Kan. 235, S. C., 12 Am. Rep. 496, by the suggestion that since April, 1870, railroads have not there been regarded as a "public use," as held in People v. Salem, 20 Mich. 452; S. C., 4 Am. Rep. 400. The Michigan courts do not, however, put the doctrine upon any such ground. Indeed, if this were the explanation, it is not easy to see why the rule should not be extended so as to exempt railroad companies from liability as common carriers of every kind of property.

EXCEPTION THAT CARRIER OF LIVE ANIMALS IS NOT LIABLE FOR LOSS FROM NATURE OR PROPENSITIES of the animals themselves, where he has been guilty of no negligence occasioning the loss, as for injuries from unruliness, restiveness, fright, viciousness, refusal to eat, or the like, is well settled, and has been often applied: Nugent v. Smith, L. R. 1 C. P. Div. 423; S. C., 45 L. J. C. P. 697; 34 L. T., N. S., 827; 25 W. R. 117, reversing S. C., L. R. 1 C. P. Div. 19; S. C., 45 L. J. C. P. 19; 33 L. T., N. S., 731; 24 W. R. 237; Kendall v. London etc. R. Co., L. R. 7 Ex. 373; S. C., 41 L. J. Ex. 184; 26 L. T., N. S., 735; 20 W. R. SS0; Blower v. Great Western R. Co., L. R. 7 C. P. 655; S. C., 41 L. J. C. P. 268; 27 L. T., N. S., 883; 20 W. R. 776; Chicago etc. R. Co. v. Harmon, 12 Ill. App. 54, 63; Indianapolis etc. R. Co. v. Jurey, 8 Id. 160; Wabash etc. R. Co. v. McCasland, 11 Id. 491; Illinois etc. R. R. Co. v. Brelsford, . 13 Id. 251; Hall v. Renfro, 3 Metc. (Ky.) 51; Smith v. New Haven etc. R. Co., 12 Allen, 531; Evans v. Fitchburg R. R. Co., 111 Mass. 142; S. C., 15 Am. Rep. 19; Penn v. Buffalo etc. R. Co., 49 N. Y. 204; S. C., 10 Am. Rep. 355; Crogin v. New York etc. R. R. Co., 51 N. Y. 61; S. C., 10 Am. Rep. 559; Maslin v. Baltimore etc. R. R. Co., 14 W. Va. 180. Thus the carrier is not liable where a bullock escapes, by his own exertions, from the truck in which he is being transported, without negligence by the carrier, the truck itself being sufficient, and is lost: Blower v. Great Western R. Co., L. R. 7 C. P. 655; S. C., 41 L. J. C. P. 268; 27 L. T., N. S., 883; 20 W. R. 776. So where the animal takes fright, after the journey is ended, at a light displayed by a servant of the company, and dashes upon the track and is killed: Roberts v. Great Western R. Co., 4 Ad. & El., N. S., 506. So where an unruly jackass is thrown off or falls off a ferry-boat, through his own restlessness or viciousness, the ferry-man, if not guilty of negligence, is not liable: Hall v. Renfro, 3 Metc. (Ky.) 55. So where a mule, being transported in a railway car, kicks through the slats at the side of the car and is killed, without fault of the carrier, there is no liability, it being the nature of the mule to kick: Indianapolis etc. R. Co. v. Jurey, 8 Ill. App. 160. Nor is the carrier liable where one of a pair of horses kicks and kills or injures the other in the car, if the car was suitable, and proper care was exercised to prevent such injuries: Evans v. Fitchburg R. R. Co., 111 Mass. 142; S. C., 15 Am. Rep. 19. So where an animal dies or is injured by heat or cold or want of food while in course of transportation, without any negligence on the part of the carrier, there can be no recovery therefor: Maslin v. Baltimore etc. R. R. Co., 14 W. Va. 180; Krby v. Great Western R. Co., 18 L. T., N. S., 658.

Where an animal while being carried perishes, partly through its own unruly conduct and partly from the effects of a storm, the carrier, if not chargeable with negligence, is not liable: Nugent v. Smith, L. R. 1 C. P. Div. 423; S. C., 45 L. J. C. P. 697; 34 L. T., N. S., 827; 25 W. R. 117.

IF CARRIER'S NEGLIGENCE CONTRIBUTES TO Loss through the infirmity or unruliness of the animal carried, the carrier is liable therefor. Thus,

although as already stated, the carrier is not liable for the death or injury of an animal by heat, in the absence of negligence, yet where hogs become heated in the course of transportation by being overcrowded, and the carrier upon being informed of the fact neglects to apply water to them, it is liable for an injury resulting therefrom, and it is no excuse that the carrier's pump is out of repair: Illinois etc. R. R. Co. v. Adams, 42 Ill. 474; Toledo etc. R. R. Co. v. Thomp80, 71 Id. 434. So the carrier is also liable for a loss occasioned by the overcrowding of sheep in an insufficient car: Ritz v. Pennsylvania R. R. Co., 3 Phila. 82. And generally, it is the duty of the carrier to provide cars of sufficient size and strength for the transportation of animals; and if it fails to do so it is liable for a loss occasioned thereby through the unruliness of the animals: St. Louis etc. R. Co. v. Dorman, 72 III. 504; Indianapolis etc. R. Co. v. Strain, 81 Id. 504; Smith v. New Haven etc. R. R. Co., 12 Allen, 531; Rhodes v. Louisville etc. R. Co., 9 Bush, 688. The rule on this point is thus stated by Mr. Justice Foster in Smith v. New Haven etc. R. R. Co., 12 Allen, 534: "The sufficiency of a car door to resist the struggles of animals, however unruly, it is in the power of a railroad company to secure. And its obligation in this respect is not satisfied by furnishing a reasonably strong car. The company is bound to have one absolutely and actually sufficient. It is practicable to make a car so thoroughly strong that cattle cannot break it down and fall out. For any failure to do so the carrier is responsible." The obligation to furnish safe and suitable cars is absolute, without reference to the fitness and fidelity of the company's servants, unless the shipper of the animals voluntarily assents to the use of cars which he knows to be defective: Great Western R. Co. v. Hawkins, 18 Mich. 427; S. C., 17 Id. 57. So, though the contract which limits the liability of the carrier in some respects is silent as to the fitness of the cars: Id. Even where the defect in the cars is known to the shipper at the time of shipment, it is held that the carrier is liable for an injury resulting therefrom, in the absence of any stipulation to the contrary: Pratt v. Ogdensburg etc. R. R. Co., 102 Mass. 557. Certainly the mere presence of the owner of the animals will not limit the carrier's responsibility for an injury from this cause, where he has no control over the cars and is not permitted to take precautions which he suggests for the safety of the animals; as where box-cars are used instead of cattle-cars for the transportation of cattle, and the owner of the cattle is refused the privilege of nailing slats across the doors; and solid doors being used, the animals are suffocated: Peters v. New Orleans etc. R. R. Co., 16 La. Ann. 222. Where the carrier has limited its liability to the end of its road, but carries the cattle beyond, and they there escape, owing to defects in the cars, it is liable for the loss: Indianapolis etc. R. Co. v. Strain, 81 Il. 504. A connecting carrier is not bound to transport animals in the same cars in which they were received: McAlster v. Chicago etc. R. R. Co., 74 Mo. 351; but if it uses the same cars it is liable for injuries from defects therein to the same extent as if they were its own cars: Combe v. London etc. R. Co., 31 L. T., N. S., 613. Even where it is denied that carriers of animals are liable as common carriers, it is held that they are liable for injuries from neglect to furnish proper cars for the transportation: Michigan etc. R. R. Co. v. McDonough, 21 Mich. 165; S. C., 4 Am. Rep. 466. A railway company transporting pigs in cars which have been washed with lime, and have not been properly cleaned, is liable for an injury resulting therefrom, although the lime-wash was used in obedience to a government regulation: Shaw v. Great Southern etc. R. Co., 8 L. R. Ir. 10.

The rule that a carrier is not exempted from liability for an injury resulting to animals transported by him, through their own restlessness or vicious

ness, where his own negligence in not providing proper appliances, etc., has contributed thereto, extends also to ferry-men. Hence, owners of a ferry who have not provided their boat, or the slip leading thereto, with proper railings, bars, chains, or the like, are liable for the loss of animals plunging off the boat or slip through restlessness or fright: Wilson v. Hamilton, 4 Ohio St. 722; Willoughby v. Horridge, 12 Ad. & El., N. S., 742; S. C., 22 L. J. C. P. 90; 17 Jur. 323.

IF OWNER OF ANIMALS OR HIS AGENT CONTRIBUTES TO THEIR Loss OR INJURY by his own act or negligence, he cannot recover therefor against the-carrier: Pratt v. Ogdensburg etc. R. R. Co., 102 Mass. 557; Illinois etc. R. R. Co. v. Brelsford, 13 Ill. App. 251. Thus, where the owner of horses transported by rail is guilty of negligence in fastening their halters and in not removing their shoes, so that one kicks the other, the carrier is not liable: Evans v. Fitchburg R. R. Co., 111 Mass. 142; S. C., 15 Am. Rep. 19. So, where the owner of a greyhound furnishes an insufficient strap and collar, by reason of which it escapes from the carrier and is killed in course of transportation, it is held that he cannot recover: Richardson v. North-eastern R. Co., L. R. 7 C. P. 75; S. C., 41 L. J. C. P. 60; 26 L. T., N. S., 131; 20 W. R. 461, distinguishing Stewart v. Crawley, 2 Stark. 323, which was a somewhat similar case. So the carrier is not liable where the owner or his agent insists on putting an animal on board the cars as he thinks best, after being requested to surrender its control to the carrier, and an injury results during the loading: Bowie v. Baltimore etc. R. R. Co., 1 McArthur, 94. So it is held that it is not necessarily negligence on the part of a carrier by water to-confine cattle between the decks of an iron ship during hot weather, where that is the act of the shipper: The Powhatan, 21 Blatch. 18. And where the owner or his agent unwarrantably interferes with the management of the animal during transportation, by refusing to allow the car door to be shut, so that the animal falls out and is killed, the carrier is not liable: Roderick v. Baltimore etc. R. R. Co., 7 W. Va. 54. And where the owner of a team on a ferry-boat keeps control of it himself, and is guilty of negligence in its management, so that the animals, becoming frightened, rush overboard, it is held that he cannot recover therefor, although the boat is not provided with sufficient chains, or the like: White v. Winnissimmit Co., 7 Cush. 155; Dudley v. Camden etc. Ferry Co., 42 N. J. L. 25; S. C., 36 Am. Rep. 501; S. C., 45 N. J. L. 368. But in Willoughby v. Horridge, 12 Ad. & El., N. S., 742; S. C., 22 L. J. C. P. 90; 17 Jur. 323, the lessees of a ferry were held liable for an injury to a passenger's horse by the giving way of the side rail of the landing-slip, although the passenger had control of the animal, they having had previous notice of the insufficiency of the side rail. The mere fact that the owner of an animal accompanies it, and exercises care respecting it in transitu, will not exempt the carrier from liability for negligence: Moulton v. St. Paul etc. R. Co., 31 Minn. 85; S. C., 47 Am. Rep. 781; nor will the presence and assistance of the owner's servant while animals are being unloaded relieve the carrier of responsibility with respect thereto: Combe v. London etc. R. Co., 31 L. T., N. S., 613.

NEGLECT BY OWNER TO INFORM CARRIER of animals shipped through another state that they are of a kind not permitted by the laws of that state to be unloaded there will, together with other circumstances, prevent his recovering from the carrier a fine which he is compelled to pay for the carrier's act in unloading the animals in that state for transshipment against his, the owner's, remonstrance: McAlister v. Chicago etc. R. R. Co., 74 Mo. 351. Although, however, the owner of an animal transported by a common carrier