
    ODEN BOWIE vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.
    At Law.
    No. 6772.
    I. The delivery of inanimate property on the platform of a railroad company, which is the usual place of receiving freight preparatory to shipment, and under an agreement previously made for the transportation of the same, is a sufficient delivery to charge the railroad company with liability as a common carrier.
    II. But where the property consists of race-horses, accompanied by the agent of the owner, assisted by other persons in the employment of the owner, three of whom are race-riders for the horses, and who travel with and take care of them, and where there was a difficulty in loading one of the horses on the car, such agent insisting on loading it as he thought best, after having been requested by the railroad employés to place the horse under their control, the owner would not be entitled to recover for an injury to the horse sustained under such circumstances.
    III. On the trial of an action for such injury, where there is a conflict of testimony as to whether the agents of the road or those of the owner had charge of the horse when the accident occurred, it is erroneous-to charge the jury that if the servants or agents of the owner refused obedience to the agents of the road the latter would still be responsible for the injury, .and that it is their duty, if they could not control the servants of the owner, to refuse transportation of the horses, in order to escape such responsibility.
    STATEMENT OF THE CASE.
    This was an action, to recover damages against defendant as a common carrier for an injury to a mare, the property of the plaintiff.
    The declaration avers that the defendant received from the plaintiff certain property, to wit, the plaintiff’s mare, known by the name of Australia, to be carried from the city of Washington to the city of Baltimore, for reward in that behalf;, and that by the negligence, carelessness, and improper conduct of the defendant, the said mare became and was injured, and the plaintiff greatly damnified, &c. The plea was, not. guilty.
    
      The bill of exceptions states that on the trial the plaintiff offered evidence tending to show that a Mr. Hall, a partner of plaintiff, on the 20th of May, 1869, engaged transportation for four horses on defendant’s cars front Washington to Baltimore, one of which was the mare Australia, and that on the following morning the horses were sent to defendant’s depot to be put on board of the cars in charge of Major Bacon, their trainer, who was accompanied by four boys, three of whom were race-riders, and all of whom were accustomed to travel with and take care of said horses. It also appears from plaintiff’s evidence that several fruitless attempts were made to load the mare on the car which had been provided by the railroad for the transportation of the animals, by the agents of the plaintiff, as well as by those of the defendant; and that in this state of things, Bacon, seeing a plank-board on the platform, said to the railroad-men, who still remained on the platform, that if they would place that at the door-way he would attempt to back her over it into the car; the railroad-men then placed this board at the door-way and Bacon attempted to back Australia into the car over it, but she refused to go, and he made no further attempt to put her on the car, and told the railroad-men he would not make any further attempt to put her on board, but would stay with her, and the train could go on with the other horses; thereupon, two men, whom he supposed to be railroad-men, took hold of the mare by the head and commenced to force her back over this board against the remonstrance of Bacon, who still held on to the bridle and tried to prevent them, and, unable to do so, tried to guide the mare, as he saw she was being pushed on one side of the board, and while she was being so forced back, one of her hind legs slipped off the end of the plank down into the space or aperture between the permanent platform and the car, and the board then broke and both hind legs went into the space or aperture; and the two men who had been backing her jumped on her to hold her down until they were made to get off by Bacon, and the mare was extricated very much bruised and cut in her legs.
    The train was finally moved to another loading-place where there was a shute, made like a stall, to which, by the direction of defendant’s agent, the mare was led by Bacon, and she was then loaded on the car without any difficulty. That the said mare broke down in consequence of the said injuries and has ever since been valueless as a racer, and that her market-value before said accident was not less than $10,000.
    The evidence on the part of the defendant tended to show that when Major Bacon and the boys came to the depot in the morning with the horses, one Dennis Blake, an employé of defendant, showed them the car for the horses and placed a movable platform at the door of the car and indicated that the car was ready for the loading. The different attempts to load the mare on the car', by the agents of both parties, are also detailed by the defendant’s witnesses, but it is not deemed necessary to state them, as the mare” was not injured until a Mr. Koontz, who was in the employ of defendant, said he would go after the engine and have the car moved to another place, and told Blake not to have any further attempt made to load the mare at that place.
    The bill of exceptions contains the following statement of defendant’s evidence of what took place afterward:
    “When Koontz went away, and after he went away, the board was placed where the temporary platform had been, at the suggestion of Bacon, who' said he was not going to stay there all day, and if they would put this board at the door he would try to back the mare over it. Blake told him not to try to back the mare over this board, and Bacon said he would take the responsibility of backing her over it; at this time Blake was standing in the door-way of the car to prevent the mare being backed in, when two or three men, outsiders, not in the employ of the defendant, but who had been on the platform during the attempt to load the mare, took hold of her and attempted to force her back over the board, and while they were doing so, one of her hind legs slipped off the end of the board into the space between the car and the platform, and the same men jumped on her to hold her down. When the men commenced to force the mare back, Blake got out of the way, because he says he was afraid of being run over; he did not prevent or attempt to prevent the men from taking hold of the mare and pushing her back over the board, and did not prevent, or try to prevent, the board from being placed at the door of the car, nor did he take hold of the mare at all at any time, or try to take or get hold of her; no employé of the defendant had hold of the mare at any time.
    
      “ That after the accident the mare was taken to the place where she was finally loaded, at which place she was got on the car — but had to be forced on. No agent of the defendant announced that the car was about to leave, nor was it, in fact, about to start. The plaintiff then offered evidence in rebuttal, contradicting witnesses for defendant, and then rested.”
    The record shows several exceptions to instructions given, and also to the refusal to give others, but no further mention of them in this statement is necessary, for the reason that the decision of the case is placed upon other grounds.
    The jury having retired sent two communications to the court, which are fully set out in the opinion following, where, upon the judge ordered the jury to be called into court, and, in the presence of counsel for the respective parties, instructed them as follows:
    “ 1. Whether the taking of the mare on to the platform in the yard of defendant, in preparation for loading, constituted a delivery so as to transfer the responsibility from the owner to the company. If you find from the testimony that the plaintiff’s servants, under an agreement to transport the property, took it on the premises and on the platform of the defendant, where a car. was found prepared, and the property was delivered with the view, and received with the purpose, of shipment, that is a delivery that transferred- responsibility from the owner to the carrier; no words of delivery are specially necessary. If you find in the acts of parties revelations of delivery and receipt, you will conclude that delivery and receipt transpired.
    “ 2. Whether, conceding these transactions took place, the interposition of the plaintiff’s servants in counteracting the economy of the defendant in the mode of transferring the property to the car would exonerate defendant from its liability and place the risk on the plaintiff; whether acts of plaintiff’s servants in custody of the horses in disobeying orders of defendant’s agents in the mode of placing property on the cars would defeat the liability so as to make the plaintiff responsible for peril incurred in consequence.
    
      “ For the purpose of ending the question’, I will say, if you find from the testimony that delivery transpired from the owner to the defendant, and continued through the process of transferring the horses to the car, if absolute possession of the property was not retrieved, if it' was not repossessed and resumed by the owner or servant, the disobedience of owner’s servant to defendant would not exonerate defendant. It was then their duty, if they could not control the plaintiff’s servants, to refuse to put the horses on the car.”
    To which charge or instruction, and every part thereof, defendant, by his counsel, excepted.
    The jury in the court below found a verdict in favor of plaintiff for $10,000, and the defendant moves for a new trial here in the first instance on the bill of exceptions.
    
      Bernard Carter, with whom were B. T. Merrick and A. G. Biddle, on the point involved in the decision contended that, as to instructions or charge of the court in response to the questions asked by the jury—
    The first instruction was given in response to the question in which the jury asked the court to tell them whether certain acts, enumerated in the question, constituted and amounted to delivery to, and acceptance by, the defendant, of the horses.
    The court, in response to this query, very properly, instead of declaring, as matter of law, that any particular act or circumstance, in itself, constituted delivery and acceptance, told the jury that whether there was delivery and acceptance, or not, was a question for the jury to decide, and that in determining this question they must not suppose that words were necessary to constitute delivery, but they could find such delivery from the acts of the parties, as interpreted by the intention with which these acts were done.
    This is an accurate and comprehensive statement of the law upon the subject. 2 Red. on Railway, pp. 46, 48 ; 6 Gray, 541, Fitchburgh Railroad vs. Hanna; see, also, 40 N. Y., 550, Gordon vs. Railroad Company; 1 McCord, 444.
    As to the second part of the charge or instruction of the judge to the jury—
    
      This instruction is, that if the jury find that there was a delivery of the horses by the owner into the possession of defendant, and that they continued in the possession of the defendant through all the process of their transfer into the cars, and that possession of them was not resumed by the owner or his servant, then the disobedience of owner’s servants to defendant would not exonerate defendant.
    The court will notice that the conclusion arrived at by the judge in this part of his charge is stated to rest altogether upon the hypothesis that the jury find, as a preliminary thereto, that possession of the property was not only originally delivered to, and taken by, the defendant, but that this possession thus acquired continued throughout all the process of loading the horses; and it is only in the event of their finding such to be the case that it is declared that the disobedience of owner’s servants to defendant would not exonerate defendant.
    The judge thus declared that if the property had been put into the possession and custody of the railroad company, and was, during the whole time, retained by it, then it cannot escape responsibility merely by showing that thereafter the servants of plaintiff did not obey all orders, or directions, or suggestions of defendant or its agents.
    Having assumed charge and responsibility of the horses, and thus become common carriers, it is not enough, to exonerate them, to show that servants of owner did not do all they were told to do.
    If the possession thus acquired continued all the time, the defendant is responsible, notwithstanding the owner’s servants did not obey defendant’s orders; because, if defendant, after having assumed possession and custody of the animals, chose to allow owner’s servants still to .take part in the loading of the horses, defendant made them giro hac vice its oion agents ; having once received the animalsjnto his possession, defendant was responsible for all proper management of the same, and is responsible for the acts of all persons it allows to take part in this management.
    The defendant having assumed possession, had a right to control and subordinate to itself all the agencies of the loading, and was bound to do one of two things, viz: Either, first, to see that these agencies were all properly conducted, and whether consisting of mechanical appliances or the acts of human beings handling the animals, and to be responsible therefor, and including herein the servants of owner, if defendant alio wed them to take part; or, secondly, if defendant found that servants of owner refused to be subordinated and obedient to directions of defendant, then defendant had a right to redeliver the possession to agents of plaintiff, and decline to allow the horses to be loaded on the cars, or to be transported thereon.
    The defendant could take either alternative, but cannot claim to occupy both positions at one and the same time.
    If it retained possession of the horses for the purpose of loading and transporting, it is responsible for the same, whether the manual handling of the animals and arrangement of the appliances was by its own agents, or by those of owner, as the same could not have been in the hands of the latter without defendant’s allowing it to be so; if. defendant did not wish it to be so, and owner’s servants declined to yield, defendant had the other alternative, viz, of redelivering the possession of the horses to owner’s servants, and so ending all relations of carrier and shipper, and relieving itself of responsibilities.
    These principles amply sustain the judge’s rulings, and are amply sustained by authorities. See the following: 11 Allen, (Mass.,) 80, Merritt vs. Old Cal. and N. R. R.; 32 Pennsylvania, 417; 2 Red. on Rail., 130, (note,) opinion of Woodward, C. J.; 1st McCord, (S. C.,) 444, Cohen vs. Humes; 22 Law Journal R., (C. P.,) N. S., 90, Willoughby vs. Horrage; 17 Jurist, 323, (same case;) 37 Mississippi, 691, Powell vs. Mills ; 5 Missouri, 36, Pomeroy vs. Donaldson ; 16 La. Ann., 222, Peters vs. N. O. & J. R. R.; Story on Bailments, 533; 2 Red. on Rail., 48; 2 Daly, (N. Y.,) 471, Lamb vs. C. & A. R. R.
    
    
      Walter S. Cox and James A. Buchanan, for defendant, in respect of the answer of the court to the written questions of the jury, contended, in the seventh subdivision of their printed brief, as follows:
    7th. And, finally, it is respectfully submitted that the instruct ions of the court below, in response to the written questions of the jury, (see record, pp. 18,19, and 20,) did not state the law of the case correctly, and therefore the new trial upon exceptions should be granted. (See Story on Bailments, 486, sec. 532; 2d Redfield on Railways, 46, sec. 156, and 47, sec. 156-4, and cases cited in note 3; 2d Redfield on Railways, 41, sec. 155, and cases cited in note 12; White vs. Winnisimmet, 7th Cushing, 155; Wilson vs. Hamilton, 4th Ohio State Reports, 722; 2d Redfield on Railways, 48, sec. 156; —, sec. 7, and cases cited in note 7.)
   Mr. Justice Wylie

delivered the opinion of the court:

“The liability of common carriers attaches from the time of their acceptance of the goods. But where goods are actually put into the wagon or barge of the carrier, he will not be chargeable if it appears there is no intention to trust him with the custody; as, if the owner is uniformly in the habit of placing Ms own servant on board as a guard, who exclusively takes upon himself the management and custody of them.” Story on Bailm., § 533, citing Hast India Co. vs. Pullem, 1 Str. R., 590; Robinson vs. Bunmore, 2 B. & P., 419; Shuffelin vs. Harvey, 6 Johns. R., 170; Marshall on Ins,, b. 1, ch. 705, which fully sustain the doctrine laid down by Story.

“ A non-delivery will also be excused by any act of the shipper which discharges the carrier from any further responsibility. As if, with the consent of the shipper, he delivers them over to another carrier, or, he deposits them at an intermediate place to await the future orders of the shippers, or, if the shipper takes them into the exclusive custody of himself or his own servants. But it will be otherwise if he merely accompanies them in their transit, not exercising any exclusive custody over them.” Ib., section 578.

In White vs. The Winnisimmet Co., 7 Cush. R., 154, the facts were these: The plaintiff drove his horse, attached to a loaded wagon, upon a ferry-boat, paying the usual toll, but declined to take the place assigned for the horse and wagon by the agent of the defendants in charge of the boat, and selected his own position, which he occupied without further objection from the agent. He did not give up the custody of the horse and wagon to the defendants, nor express any desire to do so, but left the horse, which was not accustomed to ferry-boats, alone, and while thus unattended the horse became frightened, sprang against a chain, across the head of the boat, which was fastened to hooks. The hooks broke and horse and wagon went overboard, and the horse was drowned and wagon injured. The owner brought an action against the company, as owner of the boat, to recover the amount of his losses. But the court decided—

1. That the defect in the hooks was one for which the company was liable, and which, under other circumstances, might have charged it with the losses in this case, but that—

2. The plaintiff not having, himself, exercised ordinary and reasonable care and diligence in the oversight and management of the horse, and the loss being, in all probability, owing to this cause, he could not recover.

In Smith vs. New Haven and Northampton R. R. Co., 12 Allen, 531, it was held by the supreme court of Massachusetts “ that common carriers were not responsible for injuries to live stock, caused by the peculiar character and propensities of the animals.”

And in the Michigan Southern and Indiana R. R. Co. vs. Mc-Donough, a report of which we find in 5th vol. American Law Review, 178, it was held by the supreme court of Michigan “ that upon sound principle, and upon the English authorities, it was clear that the transportatiou of cattle by railroad does not come within the reasons of the law applicable to common carriers, so far as relates to the cafe of the property and responsibility .for its loss or injury,” and “that as the company did not hold itself out as insurer of live stock, it was not liable to the plaintiff in this action.”

We think these authorities are grounded in right reason, and propose to apply them to the present case.

Plaintiff was owner of four race-horses, for which he had engaged transportation from Washington to Baltimore. These horses were “in charge of Major Bacon, their trainer, who was accompanied and assisted by four boys, three of whom were race-riders for the horses, two of whom were 17 years of age, and all of them accustomed to travel with and take care of the horses.”

One of these horses, the mare Australia, was injured while being put on board the ear, at the Washington depot, so that she became worthless as a race-horse, and this action was brought against the defendant to recover for the loss, alleged to be $10,000. The jury gave $8,000.

It seems there was no difficulty in getting the other three horses on the car, but the mare Australia was “ wild and high strung” and very difficult to manage.

Major Bacon with his four assistants, aided by several employes of the company, were all engaged in trying to get the mare transferred to the car, when she fell from the gangway down between the platform and the car, and received the injury in question.

There was a conflict of testimony between the witnesses for the plaintiff and those for the defendant, as to the suitableness and adequacy of the gangway which had been furnished by the defendant for the occasion, and as to who had the charge and management of the mare when the accident occurred — whether the agents of the plaintiff or those of the defendant.

After the jury had been out for some time they addressed a note to the court in the following terms:

“Hon. D. K. Cartter:
“Dear Sir: The jury in the case of Bowie vs. The Baltimore and Ohio Railroad, Company, disagree as to the question of the lawful delivery of the mare Australia into the custody of the agents of said road, and we would respectfully ask your honor to instruct us if the taking of the mare into the depot, and putting her on to the platform, was a lawful delivery of the same; and, if so, did the custody and possession remain in the defendants notwithstanding the agent of the plaintiff, or trainer, retained possession of her, and insisted upon loading her as he thought best on the occasion, after having been requested by the agent of the defendant to place her under his control.
“JOHN VAN RISWIOK:,
“Foreman.”

The record does not show whether any notice was taken by the court of this note from the jury until a second one was handed to the court, of which the following is a copy:

“ Washington, D. C.
February 19, 1873.
“ Hon. Judge Cartter:
“We respectfully request of your honor, that, whereas, there exists some obscurity in the minds of some of the jury in the case of Bowie vs. Baltimore and Ohio Railroad Company, we be instructed what constitutes in the eye of the law the delivery and acceptance of the mare in question to the agent or agents of said railroad company, viz: Does the fact that said mare of the plaintiff was carried to and on the premises of said railroad company, as had been previously agreed upon, and placed on the platform for transportation from Washington to Baltimore by said company’s agents, and when placed on said platform efforts were made by said company’s agent or agents to load the car with said mare, constitute said delivery and acceptance by said company.
“JOHN VAN BISWICK,
“Foreman?

In response to these inquiries the chief-justice instructed the jury as follows:

1. Whether the taking of the mare on to the platform in the yard of the defendant in preparation for loading constituted a delivery so as to transfer the responsibility from the owner to the company.

If you find from the testimony that the plaintiff’s servants, under an agreement to transport the property, took it on the premises and on the platform of the defendant, where a car was found prepared and the property was delivered with the view, and received with the purpose, of shipment, that is a delivery that transferred responsibility from owner to the carrier; no words of delivery are specially necessary. If you find in the acts of parties revelations of delivery and receipt, you will conclude that delivery and receipt transpired.

2. Whether, conceding those transactions took place, the interposition of plaintiff’s servants in counteracting the economy of defendant in the mode of transferring the property to the car would exonerate defendant from its liability and place the risk on the plaintiff; whether acts of plaintiff’s servants in custody of the horses in disobeying orders of defendant’s. agents in the mode of placing property on the cars would defeat the liability so as to make the plaintiff responsible for peril incurred in consequence.

For the purpose of ending the question, I will say, if you find from the testimony that delivery transpired from the owner to the defendant-and continued through the process of transferring the horses to the car, if absolute possession of the property was not retrieved, if it was not repossessed and resumed by the owner or servant, the disobedience of owner’s servants to defendant would not exonerate defendant. It was then their duty if they could not control the plaintiff’s servants to refuse to put the horses on the cars.

To which charge or instruction and every part thereof defendant by its counsel excepts.

The error of the first paragraph of this answer consists in telling the jury that a delivery of the mare on the platform preparatory to shipment would itself be sufficient to charge the defendant with liability.- In regard to inanimate chattels, that would have been a correct proposition. But that was not what the jury were troubled about. They had asked the court to tell them whether, if such delivery had been made, "did the custody and possession remain in the defendant, notwithstanding the agent of the plaintiff or trainer retained possession of her, and insisted on loading her as he thought best on the occasion, after having been requested by the agent of the defendant to place her under his control.”- Under the circumstances, as stated in the inquiry put by the jury, we think the court ought to have told the jury in plain terms that the plaintiff was not entitled to recover in this action.

And that the error of this instruction arose not merely from neglect on the part of the court, through inadvertence, to respond to the material portion of the jury’s inquiry, is shown from the concluding paragraph of the instruction, where the court tells the jury in substance that, although the management and control of the plaintiff’s horse at the time of the accident was claimed and exercised by the plaintiff’s own servants and agent, to whose charge it had been specially committed for that purpose, and that these servants and agent refused to follow the advice of the defendant’s agents in the matter, the defendant was nevertheless responsible for the loss; and that the only way for the defendant to escape such responsibility would have been to refuse to transport the animal.

That this instruction was erroneous we think is clearly shown by comparing it with the authorities which have been quoted, as well as on principle.  