
    MISSOURI PACIFIC R. R. CO. VS. JEROME HARRIS.
    COMMISSIONERS OF APPEAL,
    APRIL 18, 1882.
    
      JRailroad — Damages to Live Stock by Transportation — Restriction of Liability of Common Carriers.
    
    Suit for damages for injury sustained in transportation, by railroad companies, of cattle shipped from Fort Worth to Chicago, occasioned by delay on the trip. Defense, special contract with the owner, by the terms of which the latter waived claim of damages for all delays, unless occasioned by the wilful negligence of the railroad's agents, and stipulating as a condition precedent to any right of recovery that the owner shall give notice of his claim for damages at the terminus of his voyage, which defendant alleges was not given.
    
      Held, that such special contract so far as it exonerated the railroad from liability for delay, was invalid and constituted no answer to the plaintiffs action. That such provisions contravened the statute of the State (Rev. Stat., art, 278), which forbids the making of a special agreement restricting the liability of railroad companies, as it exists at common law. That railroad companies are common carriers, with the legal incidents of that relation, as to live stock as well as of inanimate property accustomed to be carried by them.
    Under the constitution and laws declaring railroads to be public highways, and railroad companies common carriers, in connection with the legislative bounty, whereby the State, counties and municipal corporations in the State under our laws have aided in the creation and fostered the existence of railroads within the State, the people of the State possess rights and interests in such highways and rights to hold railroad companies as common carriers to a degree extending beyond the privileges enjoyed at common law by a mere private corporation or private person conducting the business of a common carrier. At common law the latter class become subject to be treated as common carriers as to such property only as they elect to hold themselves out as common carriers of.
    Railroad companies do not occupy a relation to the people of this State to enable them to assert and exercise such a privilege. They are the common carriers of all such property as railroads may be adapted to transport, including live stock as well.
    It is not in the nature of things in conflict with the principles of the common law, that a carrier may not be such as respects live stock as well as of any other property. At common law the character of the carrier was never determined by the kind of property that he carried.
    Whether a person was a common carrier depended wholly upon whether he held himself out to the world as such and not upon the kind of property that he carried.
    . Our statutes in terms provides against limiting the liability of railroad companies within this State, as it exists at common law ; declaring that no special agreement made in contravention of this provision of the statute shall be valid, and a contract made in this State with a railroad company to transport cattle from a point within the State to another point in a different State, is an entire and indivisible contract, and its validity if it was made in this State will be determined by our laws, under which laws the special agreement set up by the defendant, exemptingthe railroad from the consequences of its common law liability, must be deemed invalid because it contravenes the statute referred to.
    That it was competent for the railroad company to make the special contract relied upon to the extent of providing, upon the special facts of the case, that the owner who accompanied the stock, in consideration of certain advantages and terms extended under the contract to him, should, as a condition precedent to a recovery for damages, give the notice to the company of claim for damages before the stock became mingled with other stock.
    This suit was brought in the county court of Tarrant county by Jerome Harris against the Missouri Pacific railroad company to recover $499.95 damages alleged to have been sustained by reason of the failure of the defendant as a common carrier to transport within a reasonable time two hundred and thirty-two head of cattle, shipped by the plaintiff on the 26th of August, 1881, to be carried from Port Worth, Texas, to Chicago, Illinois. The damages claimed being for loss in weight, deterioration in value, and fall of price in the Chicago market, and for extra feed occasioned by the delay, which plaintiff alleged was for the space of three days bevond the ordinary time of passage over the defendant’s road between Fort Worth, Texas, and Chicago, Illinois.
    The defense set up by the answer of the defendant, which was excepted to by the plaintiff, was in substance, that the transportation being live stock, a special contract was entered into between the parties in relation to the shipment thereof, by which after reciting the rules and regulations of the railway company for the transportation of live stock, it was agreed, among other things, on the part of the shipper, the appellee, that in consideration that the railway company, would transport his cattle from Fort Worth to Hannibal, Missouri, being eleven car loads, at a reduced rate mentioned in the contract! that he, appellee, would accompany the stock, load, unload, reload, feed, water and attend to the same at his own risk and expense, and by which special contract, the appellee also assumed all risk of damage which might buss tamed by reason of any delay in the transportation, audit was further provided in the contract that as a condition precedent to any right to recover for loss or damage to the stock, the appellee should give notice in writing of his claim therefor to some officer of the appellant railway company, or to its nearest station agent, before the stock was removed from place of destination, or from place of delivery to the shipper, and before mingled with other stock. The special answer of appellant company, set up this contract and attached a copy of the same as a part of its answer, and alleged among other things that appellee had given no notice of any claim of damage for loss or injury to the stock in question; to which answer plaintiff demurred, alleging as ground of demurrer, that the special contract was in contravention of law and of the statutes, that it was null and void, and that the provisions thereof, set up as a defense in the answer were unreasonable and contrary to public policy, and the plaintiff’s demurrer was sustained by the court, defendant excepting to the ruling thereon.
    The parties waived a jury and submitted the cause to the court. Judgment for the plaintiff against the defendant for the sum of 8366. The defendant appealed to the Court of Appeals, and among other grounds assigns as error, the following: The court erred in sustaining the plaintiff’s exception and demurrer to the matters pleaded in defendant’s answer founded upon the special contract between the parties in relation to the shipment in question, by which ruling said cdntraet and p>IaintifPs waiver therein of claim of damages for delay, etc., and the notice of claim therein required to be given by him to the defendant railway company as a condition precedent to any right of recovery, were held to be contrary to law, against public policy and void, which ruling and judgment of the court is assigned as error and relied upon by defendant as ground for the reversal, said contract being founded upon a sufficient consideration, reasonable in its pro - visions and not contrary to law or public policy.
   Opinion by

Walker, Commissioner:

The question is here presented whether a railroad company» being a common carrier, as is declared by the constitution (article 10, section 2), and by the statute (article 278 rev. stat.) is such, as to live stock or cattle, by force of said provisions of the constitution and statutes, and whether such restrictions as to their liability for the transi>ortation of such freight, as are provided for in the contract set. up by the defendant in this suit, are valid and binding upon the shipper.

The constitutional provision above referred to, is as follows r “Bailroads heretofore constructed, or that may hereafter be constructed in this state, are hereby declared public highways, and railroad companies common carriers.”’ Article 278, revised statutes, provides, that “railroad companies and other common carriers of goods, wares and merchandise, for hire, within this state, on land or in boats, or vessels on the waters entirely within the body of this state, shall not limit or restrict their liability as it exists at common law, by any general or special notice, or by inserting exceptions in the bill of lading, or memorandum given upon the receipt of the goods for the transportation, or in any-other manner whatever ; and no special agreement made in contravention of the foregoing provisions of this art tele slia-ll be valid.”

The constitutional provision above quoted, fixes the status of railroad companies as common carriers, and, in effect, seems to limit the power of ’.he legislature to vary the liability of railroad companies from that, which pertains to common carriers, as distinguished from private carriers. The scope of the statute above quoted, is to render inoperative such special agreements made in contravention of such liability of railroad companies as common carriers, as the common law attached to common carriers; therefore the statute does not. superadd any additional or more stringent liability than existed at common law, but simply maintains that liability of common carriers as known to the common law intact, and exempts from the carriers power to vary the same, by any special agreement, or notice general or special, or by inserting exeei>tions in the bill of lading, or by limiting or restricting such liability in any other manner whatever.

Eeither the constitution nor the statute undertakes to establish a new and different rule of law in respect to the established maxim of law, “that a carrier of goods, for hire, although he may be a common carrier, is not such, as to other goods or kinds of property, than such as he holds himself out to transport in the capacity of a carrier of such for hire.”

“To bring a person within the description of a common carrier, lie must be engaged in the business of carrying goods for others as a public employment; he must undertake to carry (foods of the bind, to which, his business is confined, for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation.” Hutchison on Carriers, see. 47.

It is laid down that railroad companies are common carriers, whether made so by the general statute, or by their charters or not; and whenever they are made so by the express provisions of a law, such provision will be considered as merely declaratory of the law as it already existed, and will neither increase their duties and obligations, nor, in any respect qualify their liability. Hutchison on Carriers, sect. 67, and numerous authorities cited.

It does not follow, because, railroad companies are common carriers that they are, therefore, to be regarded as such, as a matter of legal inference, as to all kinds of goods or freights which may be the subject of transportation; for, remarles Mr. Hutchinson in his work on carriers, section 77, “it by no means follows from the fact that the carrier is a common carrier, that he can be required to carry all kinds of goods.” “The word,, (goods,) when used iu defining his business, must be inter-I>reted t.o mean, such things as from usage and custom, his anode of conveyance, his public professions, the character of his particular trade, or the manner of conducting it, he is-to be fairly understood, as bolding himself out to the public, as ready to carry for bire.” * * * * * “The question,, therefore, in all cases of this sore is ? what are the true nature and extent of the employment in business in which the owners hold themselves out to the public, as engaged.” Huchison on Carriers, sec. 78.

It being a matter of universal knowledge, that railroad com-X>anies engage generally in the carriage of almost every kind of moveable, personal, inanimate property, notice will'be judicially taken as to a- large class of goods, wares aud merchandize as belonging to the class of freights which railroads do hold themselves out to carry as common carriers. But as to certain other kinds of property, there may exist no uniform habit n the part of railroads to undertake or offer to carry the same for hire; in other words, as to certain kinds of property, or various reasons which may exist, some railroads may not hofld themselves out to the public as common carriers of it, whilst other railroads might see proper to pursue an opposite course, by being common carriers of such property. See Hutchinson on Carriers, sec. 112.

It. is consistent with the rights of the common carrier of goods at common law, to relieve himself from obligations to carry particular kinds of goods by giving public notice. Hutchinson on Carriers, sec. 112.

It seems, therefore, a question of fact, as well as of law, a$ to what classes of property are embraced by a railroad in its undertakings to carry for hire; which question would, it would seem, be of no difficult solution, under the tests which have been already given to ascertain what kinds of goods, a carrier for hire will be held as a common carrier of.

It is conceived that the terms employed in article 278, revised statutes: “common carriers of goods, wares, and merchandize,” are not to be construed as either limiting or extending the class of property .to be embraced by the carrier undertaking to transport goods for hire: — those terms are ■used descriptively, rather than as of limitation, and are intended to embrace all Common carriers including as well those of live stock as of .any other property, and at the same time having no operation to change any rule of common law, which would, without the influence of this statute, determine the relation of the carrier to any given or specified kind of property for transportation.

To determine, therefore, under common law rules, whether the railroad was a common carrier, of live stock, it would be competent to show as a matter of fact, that.the owners thereof, or the corporation, held themselves out to the public as being engaged in transporting such stock, for hire, for the public generally.

From the greater susceptibility to injury by transportation of live stock than of ordinary inanimate freight, apparent modification of the rule as respects absolute responsibility for its safe delivery, is recognized by the law, but this consideration does not effect the question, as to whether a railroad company which holds itself out to the public as being ready and offering to transport for hire, such property, is or not thereby a common carrier of live stock.

The weight of authority in this country, and also, it seems, in England, seems to be that in such case the railroad company is a common carrier as to such property. Bee. Hutchinson on Carriers, Sec. 221 and note, pages 172,173, 174-, 175 of sec. 221, and numerous authorities there, cited, and see, Kansas Pacific R. R. Co. vs. Nichols, 9 Kansas, 235. In the case last cited the conclusion of an able opinion, states the proposition thus: “Our decision then upon the question is, that whenever a railroad company receives cattle or live stock to be transported over .the road from one place to another, such company assumes all the responsibility of a common carrier, except so far as such responsibilities may be. modified by special contract.”

The prohibition of the .statute which has been quoted, forbidding railroad companies to restrict their liability as i£ exists at common law, is a comprehensive inhibition, and extends, it- would seem, to any qualification of their liability as fixed by the, common law,and wouhi apply as well to those rules of the common law which determine ¡he characteristic, facts, constituting a earlier fur hire- a common carrier, as well as those rules of law which ascertain the- liability of a common carrier for the safe transportation of goods entrusted to such carrier. And although under the common law, the common carrier, could as we have seen, by giving notice', exonerate himself from the obligation to carry certain kinds of goods — of the kind even , -vhic.h carriers like himself are usually bound to carry (Hutch, on Carriers, Bee. Í12», yet, it does not follow that such mb' of she common law can be invoked by railroad companies in this s-at-e, io enable them to discriminate in their own interest, when if may suit their purpose to do so, allowing them thereby to eschew the character and responsibilities of common curiicrs as to any kind of property which they by custom and «sag.-', are accustomed to transport, and which railways in their construction are adapted to transport, and which the public at large have a right to expect them to transport. The reasons of the- common. law, which give the option to the private ciíúccn to qualify and select the character of his business, as a common, carrier, and the more primitive conditions upon which the rule of the common law op«uak*d, as is well illustrated in the opinion in the case of the Kansas Pacific R. R. Co. vs. Nichols, 9 Kansas, supra, when commerce, inventions, and the great improvements of this age, wore, in their infancy or else unknown, when those reaso-ny Í repeat, cease, the rule upon which they were founded, in iis application to a- new state of things, must, also cease.

The legislation which has fostered the creation of, and the beneficent state aid which has materially advanced 1he construction of railroads, have’both impressed upon them the quality of common carriers for the benefit of the citizens of the State, so far as relates to the carrying of all such property as railroads, according to the modern usage have been accustomed to transport. The State has extended to railroads the Benefit of her right of eminent domain, besides giving material aid in lands and otherwise; other legislation has favored the giving like material aid to them by municipal corporations and by counties; the constitution declares them to be common carriers, and establishes them as public highways.

These considerations show that the sovereign power has stamped upon these kinds of common carriers a character in which the public have an inherent interest and a vested right, and it is inconsistent with the existence of such right that the railroad company may exorcise a right to limit the purposes for which it has been thus created, by electing to become common carriers of such properly or goods only as such road may see proper to hold itself out as the carrier of. The road is a public highway and the company are common carriers over it; it would be vain to attempt to make a railroad a public highway unless the company owning the rolling stock were compelled to offer its use in a practical way to the public in transporting goods ; it would be vain to attempt to impress upon the company the character of a common carrier of general property, if the option resided with the company to withdraw from the operation of the carrying business, except as to a limited line of articles of merchandise.

We think, therefore, that it is not competent for a railroad company to restrict its liability as to any kind of goods or property, which according to usage would he embraced as goods ordinarily subject to transportation by railroads, by refusing to transport the same as a common carrier; or by giving notice that, such property would not be transported by the company on the terms of their common law liability as common carriers. It is theii duty to provide suitable cars and safe appliances for the reception, safe keeping and transportation and delivery of all such property, whether live stock or other, as may fairly be supposed to have been contemplated should have been carried by them at the time they received their charters, and accepted the State’s aid in constructing their road, or even, as might afterwards reasonably appear from subsequent and varying circumstances, in the condition of the country and its industries, should be transported by them.

The relation which railroad companies occupy to the people of the State of Texas, is one voluntarily assumed by them, upon beneficial, advantageous terms, in consideration of which they have in effect contracted under the laws, to become com-moil carriers of whatsoever kind of property may be properly carried, as is usually carried by railroad companies.

It is not in the nature of things, exceptional on principles of the. common law, that a common carrier may not he such as respects live stock as- Avell as of any other property. In the ease of Kansas Pacific R. R. Co. vs. Nichols, 9 Kansas, 235, (supra,) the judge delivering the opinion says, “the reason Avhy cattle and 'live stock Avere not transported by land by common earners at common law, Avas because no common carriers at the time our common law was formed, had any convenient means of transportation. * * * At common law the. character of the carrier was never determined by the kind of property that he carried. He might liaise been a private or special carrier of goods, wares and merchandise, or any other kind of property, or he might have been a public or common carrier of cattle, live stock or any other kind of property just as he chose, all personal property was subject to be carried by a common carrier and no personal property aves exempt. Whether a person was a common carrier depended Avholly upou Avhether he held himself out to the Avorld as such, and not upon the kind of property that he carried. In the absence of specific legislation to the contrary, it may be laid down as 1lie universal law of this country, that all common carriers, may by express err special contract, exonerate themselves from that rigorous rule of the common law, Avhieli in the absence, of a contract, makes them insurers of the goods intrust ed to them. (See Hutchinson on Carriers, Sec. 337.) Rut our statute in terms, provides against limiting or restricting the liability of railroad companies and other common carriers of goods, Avares au.d merchandise for hire, as it. exists at common law, and no special agreement made in contravention of this provision of the statute shall be valid. (R. S., Art. 278.)'

Damages and injury to goods entrusted to a common carrier which result from delay in their transportation, afford unquestionable ground for the carriers liability at common law “as to the time in which the carrier is bound to complete the transportation-of the goods the rule cannot be moresatisfactorily laid down, than that-it must be done Avith all convenient dispatch, Avith such suitable and sufficient meaus as he is required to provide for his business, which is commonly defined as a reasonable time. This duty to deliver within Avithiri reasonable time, is one engrafted by the law upon the principal contract, which is to carry safely/’ Hutchinson on Carriers, sec. 328.

The special contract set up by the defendant in this case contained a provision Avhich exempted the railroad company “from all risk of damage which may he sustained by reason of any delay in such transportation * * # * not resulting from the wilful negligence of the agents of the party of the first part.” (The defendant.)

We conceive that this provision is wholly - invalid, and is made “in contravention of” the provisions of article 278 of the Revised Statutes.

The delay which is excused under this special contract is notconfiued to unavoidable delays or such other delays as would excuse the common carrier from the consequences of damage to goods produced by it. The proviso thus made in favor of the company is broad enough to exempt the company from damage resulting from eveu the negligence of defendants agents, unless such negligence were willful, on their part, in causing the delay.

Such a stipulation as this was can hardly he said to be a just and reasonable one in the eye of the law, as applied to common carriers for hire, and unless it were so, it would not be a valid stipulation, even where the statute contained no such inhibition as our own does against limiting the common law liability of carriers. See Railroad Company vs. Lockwood, 17 Wall., 357.

Bat under the. statute referred to, it appears clearly to our ininds, that such a stipulation, even though it may bej ust and reasonable enough, is at all events one made in derogation of the provisions of the same.

The gist of the plaintiff’s cause of action as set forth in his petition consists in the damage sustained by him from the alleged delay of the defendants to transport said cattle, which he alleged was not an unavoidable delay, but negligently failed and refused to transport them to their destination within a reasonable time, whereby through said negligence and the carelessness and default of the defendant said cattle were delayed three days beyond the usual and ordinary time of passage over defendant’s road. The petition alleged specifically the fact whereby it was made to appear that the alleged delay had the effect to injure and cause a deterioration in the value of the cattle. Such then being the plaintiff’s cause of action, the answer relying upon the special contract which by its terms, exempted the defendant from liability on account of any delay whatever, must be held to be insufficient as a defense against the action.

The remaining question for consideration under the first assignment of error is whether the provision contained in the special contract required notice to he given by the plaintiff of his claim for damages as a condition precedent to his right to sue, was a valid provision in said special contractor not. The-clause in question provided “that as a condition precedent to the plaintiffs right to recover any damages for any loss or injury to said stock, he will give notice of his claim therefor in writing to some officer of the party of the first part, or its-nearest station agent before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same, by said party of the second part, and before such stock is mingled with other stock.” It has been decided by the Court of Appeals of this State at the Austin branch in the case of H. and T. C. Ry. Co. vs. J. A. Park, see opinion, record book No. 1., p. 470, that our statute forbidding common carriers to limit or restrict their liability, see article 278 Revised Statutes, in terms applies to domestic carriers on land within this State or on the waters entirely within the body of the Slate, holding that it was never intended by the legislature that this restriction, so laid down by this section upon domestic carriers, should affect and apply to inter-state carriage and traffic.

But if the terms of our own statutes had beeen sufficiently general to have embraced contracts with common carriers for the transportation of goods, wares, and merchandise, beyond the limits of thiu State, as well as within it, then the clause in question, limiting the carriers’ liability, would be wholly inoperative, and the contract as to that clause, would be, invalid whenever the contract was sought, to be. enforced. The rule seems to be, “ If a contract be entire, and indivisible, and is to be partly performed in the State where it is made,, and part in another, then the lex loci contractile or law of the State where it is made governs as to its validity, and if invalid there, it is invalid everywhere else.” Borer on Inter-State Law, p. 51.

This author illustrates the rule by reference to a ease. Hie facts of which are quite opposite to those involved in thin ease. He says: “Accordingly where a contract is repugnant to the law of the State where it is made, and is part performable there, it is void, all hough it contemplated performance, in part, somewhere else — the contract, being of a nature, entire- and indivisible. Thus, a contract was made, m the State of Iowa, for transportation of live stock partly in said State and partly in the State of Illinois, to the City of Chicago, the contract containing a clause limiting the common law liability of the carriers, while at that time a statute, was in force in Iowa, declaring that 4 no contract, receipt, rule, or regulation, shall exempt a 'railroad company, person, or firm, from the full liability of a common carrier, which in the absence of any contract., receipt, rule, or regulation, would exist,’ in respect to-the property or persons undertaken tobe carried. The Hupreme Court of Iowa held the contract void, as in violation o-the statute, notwithstanding the objection urged to such rul’ ing, that the contract was in part performable in Illinois where in law sueh limitation of liability was permissible.’ McDaniel vs. Chicago and Northwestern Railroad Company 24 Iowa, 412; Rorer on Inter-State Law, p. 46.

The court delivering the opinion in the case just-cited, per Cole, J., say: “ The contract being entire and indivisble, made in Iowa, and partly to be performed here (Iowa), it' must as to its invalidity, nature, obligation, and interpretation, be governed by our law. .And by our law, so far it as seeks to change the common law, it is wholly nugatory and inoperative. The rights of the paities then, are to be determined under the common law, the same as if no contract had been made.”

It will be noticed that the statute of Iowa, above referred to, and quoted, prohibits, in toto, limitations to be made upon the 'contracts of common carriers, as to their common law liability, irrespectivé of the limits of the State, whereas, our own statute, as has been seen, prescribes a more restricted prohibition. Hence, under similar contracts which might be made, respectively here, and in the State of Iowa, the rule of law applicable to them would be different.

The only remaining question then seems to be, whether the clause in question, requiring the-plaintiff to give the company notice of his claim for damages, is one which the law will tolerate as a reasonable provision in a contract of this character, and consistent with the general policy of the law, re.specting the duties and obligations of common carriers.

This precise question has been the subject of profound consideration of many of the highest courts of this country ; and we shall content ourselves, from a review of some of them, to adopt for our conclusion, that which seems to be, amidst the apparent differences of legal views upon this subject, what seems best supported by the general current of judicial authority, and best maintained by good reason.

This question, as applied to a railroad company as a common carrier oí live stock, under a special contract, substantially the same as this, was decided by the Supreme Court of Kansas, holding the stipulations for notice to be given of a ■claim for damages, to be valid, not contrary to public policy, and not a contract which pretends to relieve the railroad company from the consequences of its own negligence.

The opinion cites cases which are said to be in accordance with it. Boakard vs. Baltimore and Ohio Railway Company, 34 Md., 197; Wolf vs. Western Union Telegraph Company, 62 Penn., 83.

And the opinion also refers to two cases which are supposed to hold to-a different doctrine, and says: “If our reasoning is correct, then the case of Adams Express Company vs. Ragan, 29 Indiana, 21, and the Southern Express Company vs. Carpenter, 44 Alabama, 101, are not in conflict with the conclusion we have arrived at. The first of these cases recognizes the rule that stipulations as to notice may be made, but states that the notice in the case under consideration, was under the circumstances, unreasonable; the same observation applies to the Alabama case.” Goggin vs. Kansas Pacific Railway Company, 12 Kansas, 416.

The court in this case, in thus holding the contract to be a reasonable one, distinguished as to circumstances, that might be connected with the shipment of live stock to a distant point by rail, and whilst under the facts of the case before it for decision, (which-were that the plaintiff in that case was to accompany the stock and superintend it on the way!.

The court held, that the agreement to give the contemplated notice was reasonable, under those circumstances. The opinion says, “nor would such a notice be reasonable in the case of an ordinary shipper, who did not accompany and superintend Ms stock, nor would it probably prevent a recovery for injuries sustained, which could not readily be seen, and actually should not be discovered till the time for giving the notice had expired.”

The facts as to the shipment in this case, are identical with those of the case cited.

The same principles and rules of law applied to similar facts, are declared by the Supreme Court of Missouri, see Rice vs. Kansas Pacific Railway, 63 Missouri, 314. The same principles of law upon which the two cases, just cited, are vested in their application to contracts for the transportation of live stock, is laid down and applied to express companies as common carries of parcels, by the Supreme Court of the United states. Express Company vs. Caldwell, 21 Wallace, 266; and it was decided by the Supreme Court of Wisconsin. Betts vs. Farmers’ Loan Company, 21 Wis., 82. That a common carrier may contract that the owner of livestock shall assume all risk of damage, from whatever cause, in course of transportation, the court in this case indicate that their opinion has reference to this kind of property only, and the rule laid down by them is drawn from the particular risks and responsibilities of carrying this kind of property.

We conclude, therefore, to follow the rule of law, which the cases which we have cited indicate as the true one. It follows from this conclusion of ours, that the defendant’s answer on this head, presented prima facie, a valid defense against- the plaintiff’s action, and that the court below, erred in sustaining the plaintiff’s demurrer to the same.

If the defendant was entitled under the law to any advantage upon the trial, by resaon of this clause of his said contract, whereby he might, either in whole or in part, protect himself against the plaintiffs claim, he might properly set up said clause of the special contract in his defense; and because the defendant was not permitted to do so, the judgment ought to be reversed, and the case remanded.

Adopted by the Court of Appeals.  