the sum which the plaintiff has already received by way of indemnity, and as the entire amount of the loss has been paid, the plaintiff is entitled, under the contract, to receive nothing more. Judgment is to be entered for the defendant.

Carrier cannot Exempt himself from Liability for Negligence.-It is well settled in the United States courts that a carrier can by special contract exempt himself from liability for all loss except that occasioned by the negligence of himself and his servants. He cannot, however, exempt himself from liability for a loss occasioned by such cause. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; New World v. King, 16 How. 469; Express Co. v. Kountze, 8 Wall. 342; Railroad Co. v. Pratt, 22 Wall. 123; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Railway Co. v. Stevens, 95 U. S. 655.

Carrier may Contract for Benefit of Insurance.-It seems to be settled that a carrier may by special contract provide that he shall have the benefit of any insurance affected upon the goods in question. Mercantile Mutual Ins. Co. v. Calebs et al., 20 N. Y. 173; Phoenix Ins. Co. v. Erie & Western Trans. Co.; Lawson on Carriers, 383; Carstairs, McCall & Co. v. Mechanics & Traders' Ins. Co., supra.

BAKER & STRATTON

v.

LOUISVILLE and NashvilLE R. R. Co.

(10 Tennessee Reports, 304.)

Railroads are not bound as common carriers of live stock and only relieved of liability by the act of God or the public enemy. As carriers of live stock they are bound to use due and proper care, and deliver in reasonable time.

APPEAL in error from the Circuit Court of Sumner County.
Head Bros. for Baker & Stratton.

J. J. Turner for railroad company.

DEADERICK, C. J.-The plaintiffs in error brought suit against defendant to recover damages for failure to deliver in proper time at Memphis, a car load of sheep, shipped by them from Gallatin.

One of the firm testifies that they had been in the habit of shipping stock to Memphis, and that on the 23d of May, 1872, they took a lot of sheep, near two hundred, to Gallatin, in time to have shipped them that evening, and proposed to the agent at Gallatin to ship the same evening to Memphis; that witness told the agent his object was to get to Memphis on the evening of the 25th, so as to avail himself of next day's (Sunday's) market. When preparing to load that evening, witness states that Barth, the agent, told us not to ship that evening, but next morning at 9.15, and we

would go straight through, arriving in Memphis Saturday evening. Upon this advice and assurance that we would make better time and have no delay, by leaving on the morning of the 24th instead of the evening of the 23d of May, the witness says they drove their stock out of town and returned and loaded it on the train next morning at 9.15. He says Barth told him that they would make connection at Bowling Green, on the evening of that day (24th) with freight train No. 7, and also connect at Paris, and not be delayed on the road. The witness found, on arriving at Bowling Green, that train No. 7 had been discontinued for a week, and that he could not leave that place until the next morning, and he arrived at Memphis Sunday evening, too late for the market of that day-they sold their sheep next day for $1.25 on the one hundred pounds less than they could have sold them for on Sunday, the day before. The stock was damaged to the extent of five or six pounds per head by the delay and shrinkage in weight.

From this witness' testimony it seems that his object was to arrive in Memphis Saturday night, and sell his stock on Sunday morning, which for some reason, he says, is usually the best day in the week as to prices. This is about the case as insisted on by plaintiffs.

There was evidence showing that Barth did not know that No. 7 would not go out of Bowling Green, as stated by him, and that at that point the railroad agent had the sheep turned into a lot, and watered and fed and shipped off next morning after their arrival, upon the first freight train.

The jury returned a verdict in favor of plaintiffs for $25, and they appealed in error to this court, and insist that the charge of his Honor, the circuit judge, was erroneous, and that they are entitled to larger damages than the jury awarded them.

His Honor charged the jury, that if the defendant contracted to deliver the sheep in Memphis at a particular time, they were bound to do so, and on failure would be answerable in damages. The court further charged, that if Barth, the agent of defendant, advised plaintiffs that they had better lay over till next morning, believing at the time they would connect with a train (No. 7) for Memphis, and plaintiffs and he were both ignorant of the fact that that train would not be run next day, this would not amount to a contract for the delivery of the sheep at Memphis on the 25th of May; that defendant was bound to use due and proper diligence, and to deliver the stock in a reasonable time.

His Honor also charged the jury that the market on Sunday for the sale of cattle and sheep, is unlawful, and that defendant was not liable "to pay for any speculative price that plaintiffs' sheep would have brought on Sunday."

This was the substance of the charge, with the addition that the plaintiffs ought to have held their sheep over to Thursday, a

market day, and then sold them, and look to defendant for any difference in price between that day and the time he should have arrived, and for the keep and loss of weight by the delay.

The plaintiffs asked several instructions to the jury, which the court refused to give.

The first instruction as to the furnishing of the transportation and delivery in reasonable time, was given in the charge. It was, therefore, no error to refuse to repeat the instructions.

The plaintiffs next requested that the court should say that the defendants were common carriers, if the proof showed they transported goods, stock and produce for hire and compensation.

His Honor had instructed that the defendants, in transportation of live stock, were not bound as common carriers, and only relieved by the act of God or the public enemy-adding, they are common carriers as to passengers and goods, and as to live stock liable to die, etc., they are bound to use due and proper care and deliver in reasonable time. This suit is brought for delay in delivering the stock, and his Honor says in such case, in substance, that the defendant is not necessarily liable for delay in delivery, unless prevented by the act of God or by the public enemy. And this is in accord with the holding in 1 Cold. 271 and 6 Heis. 273-4.

Next, the court was requested to say that the change of schedule should be made known to the agents and the public. This was said in the charge as given.

The court was also requested to say that defendants were bound to furnish suitable and sufficient transportation, and that defendant is bound by the contracts made with plaintiffs by their agent, and are liable for breach of the same. Both these propositions were charged in substance and effect.

Instructions were also asked to the effect that the measure of damages in this case was, the injury to the stock, and the difference between the price realized and that at which they could have sold on Sunday morning.

We do not think that there was any error in refusing this instruction. Such, perhaps, as to the sale, if it had been shown to be the market value, would have been the rule, and if there had been a contract to deliver by a specified time, or if there had been unreasonable delay.

Lastly, the court was asked to say that a contract entered into Sunday, but not to be executed until Monday, was not illegal. It seems to have been so held by this court, 6 Lea, 288.

But the circuit judge had charged, that the facts detailed did not constitute a contract; there was, therefore, no contract to deliver the sheep on Saturday evening at Memphis, and the refusal of the court to charge as requested, did not prejudice the plaintiffs. The defendant was only bound to deliver within a reasonable time,

and there is no error for which the judgment should be reversed and it will be affirmed.

Liability of Carriers of Live Stock.-According to some authorities, carriers of live stock are held to all the ordinary responsibilities of common carriers. Kansas & Pac. R. Co. v. Reynolds, 8 Kans. 623; Kimball v. Rutland & Vt. R. Co., 26 Vt. 247; Kansas Pac. R. Co. v. Nichols, 9 Kans. 235; S. & N. Alabama R. Co. v. Hanlein, 52 Ala. (N. S.) 606; Smith v. New Haven & Northampton R. Co., 12 Allen, 531; Evans v. Fitchburg R. Co., 111 Mass. 142; Wilson. Hamilton, 4 Ohio St. 722; Welsh v. Pittsburg Ft. W. & C. R. Co., 10 Ohio St. 65; Michigan Central R. Co. v. Myrick, 9 Am. & Eng. R. R. Cas. 25.

Carriers of Live Stock not Held Liable as Insurers.-In other cases the carrier of live stock is not held liable as at common law in the transportation of other goods. He is not deemed an insurer. Clark v. Rochester & S. R. Co., 14 N. Y. 570; Penn v. Buffalo & Erie R. R. Co., 49 N. Y. 204; Conger . Hudson River R. Co., 6 Duer. 375; Michigan S. & N. Ind. R. Co. v. McDonough, 21 Mich. 166; Lake Shore & Mich. S. R. Co. v. Perkins, 25 Mich. 329; Louisville, etc., R. Co. v. Hedges, 9 Bush 645; Rexford v. Smith, 52 N. H. 355.

Live Stock must be Transported and Delivered within Reasonable Time. -A carrier is bound to use all reasonable diligence in the transportation of live stock. Illinois R. R. Co. v. Waters, 41 Ill. 73; Ohio & Miss. R. Co. v. Dunbar, 20 Ill. 623; Tucker v. Pacific R. Co., 50 Mo. 385; Michigan S. & N. R. Co. v. McDonough, 21 Mich. 165; Phila. W. & B. R. Co. v. Lehman, 6 Am. & Eng. R. R. Cas. 194.

CANFIELD et al.

v.

BALTIMORE AND OHIO R. R. Co.

(93 New York Reports, 532.)

A common carrier is bound to exercise reasonable care and prudence in the transportation of property, and is liable for loss resulting from a failure in this respect, although by his contract the transportation is "at the owner's risk."

Where the fact of injury is established, and negligence on the part of the carrier is shown, to which, as a cause, the injury can reasonably be imputed, the question as to whether it was so occasioned is one of fact for the jury.

The failure of the carrier to deliver the property or any portion thereof to the consignee on demand at the place of destination is prima facie evidence of negligence, which, in the absence of any evidence excusing the nondelivery, presents a question of fact for the jury.

Plaintiffs shipped under such a contract by defendant's road at W. eighteen boxes of jewelry to be transported to Ñ. Y. The evidence tended to show that, owing to inefficient facilities or accumulation of freight, from three to six days more than the usual time was taken in the transportation. Also that before delivery to the consignee, and while the boxes were in the possession of the defendant, one of them was opened and a portion of its contents abstracted. The court charged the jury that they could not find a verdict for the plaintiffs except upon the assumption that the property had

been stolen or lost while in the defendant's possession, and that such loss must be found to be attributable exclusively to the negligence of defendant in delaying transportation. Held, error.

APPEAL from judgment of the General Term of the Superior Court of the City of New York, entered upon an order made December 5, 1881, which affirmed a judgment in favor of plaintiffs, entered upon a verdict.

This action was brought to recover the value of a quantity of jewelry, part of the contents of one of eighteen boxes delivered by plaintiffs to defendant for transportation from Washington to New York, which jewelry, plaintiffs alleged, was through defendant's negligence abstracted from the box while in its custody.

In the bill of lading, opposite to the description of the packages, was written the words "owner's risk."

The case is reported on a former appeal in 75 N. Y. 144.
The material facts are stated in the opinion.

Benj. Estes for appellants. Unless the bill of lading was delivered and accepted before shipment of the goods, plaintiff's rights are not affected by any conditions contained therein. Bostwick v. B. & O. R. R. Co., 45 N. Y. 716. The most favorable charge that the defendant was entitled to on the evidence, in any event, was that it was a question of fact whether the goods were shipped under that bill of lading. Justice v. Lang, 52 N. Y. 327, 328, 329. The fact that the goods were never delivered to the consignees, having been proved, is evidence of negligence, and negligence will be presumed from such proof. Westcott v. Fargo, & Lans. 319; Magnin v. Dinsmore, 56 N. Y. 168; 70 id. 417; Burnell v. N. Y. C. & H. R. R. R. Co., 45 id. 185; Newstadt v. Adams, 5 Duer, 43; Steers v. L., N. Y. & P. Steamship Co., 57 N. Y. 1, 6; Fairfax v. N. Y. C. & H. R. R. R. Co., 67 id. 11; Curtis v. D., L. & W. R. R. Co., 74 id. 124; Beardsley v. Richardson, 11 Wend. 25; Arent v. Squier, 1 Daly, 347; Earl v. Cadmus, 2 id. 237; Schwerin v. McKie, 5 Robt. 404. Common carriers, or even warehousemen, are bound to deliver goods intrusted to them on demand, and on failure to do so must be regarded as having converted the same, unless they prove that they were lost without their fault, and that they exercised ordinary care in keeping the same. B'k of Oswego v. Doyle, 16 W'kly Dig: 308; Boies v. H. & N. H. R. R. Co., 37 Conn. 272; Funkhouser v. Wagner, 62 Ill. 59; Logan v. Mathews, Penn. St. 417; Lewis v. Smith, 107 Mass. 334; Adams Exp. Co. v. Stettaners, 61 Ill. 184; Claflin v. Meyer, 43 N. Y. Supr. 7; McGuire v. Tyler, 8 Wall. 650; Bush v. Miller, 13 Barb. 481; Wharton on Neg. § 422. Merch's' B'k v. Rowls, 7 Ga. 191. The same presumption of negligence arises when a common carrier fails to deliver a part of the goods as on a total failure. Edwards on Bailments, $$ 671, 672; Hawkes v. Smith, 1 C. & M. 72; Brintner v. Saratoga R. 32 Vt. 665; Ellis