
    ODEN BOWIE vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.
    At Law.
    No. 6772.
    I. In an action against a railroad company as a common carrier, for an injury to living freight, a witness was not allowed to answer a question whether the freight had been in fact delivored to the defendant where the delivery was disputed, and other witnesses had stated tho facts and circumstances relating to the delivery.
    II. Whether freight has been delivered to a common carrier so as to fix his responsibility is a mixed question of law and fact, and is usually shown by proving that the freight was sent to the place where it is the habit of the carrier to receive it, accompanied with notice to him that it is there for transportation.
    III. Where a contract was entered into by which four horses were to be transported from Washington to Baltimore on the railroad of defendant, and the horses were to be accompanied by their grooms, and if the horses, in accordance with the agreement, were admitted to the inclosure where the defendant usually received such freight, and the defendant notified that they were there; and if the process of loading them had been partially completed by the shipment of three of the horses with their grooms: Held, that, although the agents of both parties were engaged in such loading when the injury occurred, these facts would constitute a delivery of the animals.
    IV. Such an agreement is no waiver of the strict responsibility of the defendant, as a common carrier, any further than it might be modified by the fact that persons were to be sent by the owner along with tho property; and if the property is injured through the negligence of the agents of the defendant, it is liable for the damage; and if the injury was caused by the act or conduct of the owner’s servants, the defendant would not be responsible.
    STATEMENT OF THE CASE.
    This case was before the general term in April, 1873, upon a bill of exceptions, and a new trial was ordered. The pleadings being amended the cause was again tried at the October term of the circuit court, 1874, and the plaintiff, to maintain the issue on his part, offered evidence tending to show that on the 20th of May, 1869, Francis M. Hall, on the plaintiffs behalf, went to the defendant’s depot in "Washington and engaged transportation for four horses from Washington to Baltimore on the next day, one of which was the mare Australia referred to in the declaration, representing that they were race-horses, and stipulating that they were to be sent in a car by themselves, and were to be accompanied by their trainer and three or four other attendants; that on the next day the animals were sent to the depot in charge of their trainer, one Major Bacon, who had long experience in the management of race-horses, and one other man and three boys of about seventeen years of age ; that he brought said horses into the yard of defendant where they were to be received, and upon arriving at the yard Bacon inquired what arrangements had been made for shipping the horses, and was pointed to the car provided for them; that he objected to the car, and another was brought; that one Dennis Blake, defendant’s agent, directed him to lead the horses into the car, that he, Bacon, objected to the platform or bridge over which the horses were to be led from main platform into the car, because it consisted of two pieces of scantling, across which were nailed pieces of plank, with the scantling turned up, and which he considered dangerous; he also objected that the place was not suitable, and asked if there was no better, but was told that there was none, and that the horses must be loaded there; that Bacon then attempted to lead the mare on the car, and she refused to go ; that several expedients were resorted to, at the suggestion of defendant’s agents and others, without success; that Bacon offered to take the responsibility of leading her over a piece of iron lying there if they would allow it, but defendant’s agent would not allow it; that Koontz, the superintendent of the defendant, suggested that one of the other horses of plainti ff’s should be led into the car first, and the mare Australia led after him ; that Bacon acted upon this suggestion, but the mare would not follow, being tried after each of the horses, three of which, with the boys accompanying them, were put into the car; that some one announced that the cars were about to start, •and said Bacon asked that the other horses be taken out, which the agent of the defendant refused to do or allow; Bacon proposed if a two-inch board lying near was placed at the door he would try to put her over it, and, the board being so placed, he attempted to back her over it and failed, and thereupon he declared that he would make no further attempt to load her, but would stay there with the mare, and they might go to the devil with the other horses; whereupon two men, whom he supposed to be railroad-men, suddenly seized hold of her and forced her back on the plank, he meanwhile holding the bridle and remonstrating with them, and demanding that they should let her go, and in their attempt to back her on the car they backed her a few inches below the gangway, and her leg went down in the open space between the car and the platform, and the other leg resting on the board, which, in her struggle to get up, was broken; she was severely injured and ruined for life; that after she was extricated, the cars were moved to another place, where there was a shoot well adapted for the loading of horses, and having sides to protect the animal against the danger of falling between the car and platform, and where she was loaded without difficulty, whereas the first place was dangerous and wholly unsuitable, the car being drawn up alongside the platform several inches from it, and no provision being made to protect a horse from going down between the car and platform or either side the gangway leading from platform to car; that he, Bacon, considered himself acting under the directions of the defendant’s agents throughout. And said Bacon admitted, on cross-examination, that Koontz, the defendant’s general agent, requested him to give him the mare to lead, intending to back her into the car, and said Bacon refused to allow said mare to be backed, saying that Governor Bowie had sent him there to see to their proper shipment, and she was too valuable an animal and should not be backed; said Bacon further testified that he informed defendant’s agent that the mare was wild and of great value, at least $10,000; that before the plank was tried, said Koontz moved away and he heard no order given by him to desist from attempts to load at that point, or any intimation that he would move the car to another; evidence was also given to show that the mare was of the market-value of about $10,000 as a racing mare, and that her value as such was wholly destroyed by the accident in question.
    The defendant then offered evidence tending to show that George S. Koontz was the general agent of the defendant at its Washington depot, and Dennis Blake was specially deailed to attend to the loading of horses, cattle, &c.; that, when Bacon arrived with the horses, Blake designated the car prepared for them, and Bacon attempted to lead the mare Australia into the car ; that Koontz came upon the platform where he was, and suggested to Bacon to load the other horses first, and that he also requested Bacon to give him the mare to load, as he was more experienced in loading horses, and Bacon refused, saying that Governor Bowie had sent him there to load the horses and he meant to do it, and would not give them to any man ; that Koontz thereupon ordered the platform to be removed and that no further attempt should be made to load her there, and told Blake, whom he left in charge, not to allow it, saying he would have the engine brought and the car removed to another place 5 that after he left, Bacon tried to load her on a plank before referred to, and Blake testified that he remonstrated against the attempt and half closed the door, and Bacon said he would take the responsibility ; that Bacon held the mare’s bridle, and two men who were not in the defendant’s employ pushed the mare on the plank, and it broke and she fell through; that no men in the employ of the defendant had hold of the mare at any time, and the men who were assisting to get her in were not the agents of the defendant, and said Koontz did not consider her in his charge at any time before the accident, nor did any agent of the defendant’s announce that the train was about to start, nor was such the fact.
    The defendant’s counsel then proposed to inquire of Koontz, who was examined as a witness, whether in fact the mare was delivered to him; but the court refused, ob j ection being made by plaintiff’s counsel, to allow the question to be answered, insisting that he should state what facts transpired, that the court might determine if they constitute delivery in law; to which refusal the defendant, by its counsel, excepted.
    On cross-examination, Dennis Blake stated that he saw the two men seize the mare and back her after Koontz left, and after Ms instructions from Koontz not to allow any further attempt to load at that place, and that he did not order them to desist nor inform them of Koontz’s order; did not assist Bacon in making them desist, and neither called out to them or interfered with them in any way whatever, and does not know how the door was opened, or whether it was opened or not, and that one of the men who so seized the mare by the bit and backed the mare at the time she fell, though not in the employ of defendant, was a man who was always about the depot, engaged in business as an expressman, who was 'allowed to help to load and unload the cars, and who had assisted him, Blake, in placing platforms and gangways for these horses to pass over. The witnesses of defendant further testified, on cross-examination, that the horses were brought byBaconinto the inclosure belonging to the defendant connected with the depot and appropriated by defendant to the reception by the company of horses intended for shipment'.
    It also appeared on cross-examination, and from the books of defendant, that Bacon had paid for the transportation of the horses as soon as he reached the inclosure referred to with the horses, and before any attempt made to load them.
    At the close of the testimony the defendant asked the court to give the following instructions to the jury:
    FIRST PRAYER — (REFUSED.)
    That on the whole evidence the plaintiff is not entitled to recover in this action.
    SECOND PRAYER — (REFUSED.)
    That, in order to sustain this action, the burden of proof is on the plaintiff, to show a complete delivery of the mare to the defendant, and that the plaintiff’s agent had relinquished -all exclusive possession and control of her before the injury complained of occurred; and, unless such complete delivery be shown, it is immaterial in this action whether the arrangements made by the defendant for loading the animals on the cars were proper and sufficient or not.
    THIRD PRAYER — (GRANTED.)
    That the plaintiff is not entitled to recover in this action without proving that he delivered the mare to the defendant, to be carried as alleged in the declaration; and if the jury find that the plaintiff’s agent retained control of her for the-express and avowed purpose of conducting her safe shipment on the cars himself, and had not parted with that control to the defendant at the time the injury occurred, they must find for the defendant.
    FOURTH PRATER — (REFUSED.)
    If the jury find that plaintiff’s agent declined to deliver-the mare to defendant’s agent to be shipped on the cars, but retained control of her for that purpose himself, and defendant’s agent assigned for that purpose a place in the depot which he had reasonable ground to believe suitable, and assisted the plaintiff’s agent in the effort to ship her at that place, but, finding unusual difficulty in so doing, desisted from and forbade further efforts so to do, and proceeded to provide-another place which was unobjectionable, where the animal was afterward successfully shipped, and that meanwhile, in an effort renewed to ship her at the first-named place by the plaintiff’s agent or others not in the employ of the company, against the orders of said defendant’s agent, the mare suffered the injury complained of, the plaintiff is not entitled to recover.
    FIFTH PRATER — (REFUSED.)
    If the jury find that while the mare was still in charge of' the plaintiff’s agent persons casually present, and not in the employ of the defendant, attempted to load her on the car without or against the orders of defendant’s agent, the defendant is not responsible for any injury that resulted from such attempt.
    SIXTH PRATER — (REFUSED.)
    Although the jury may find that the defendant’s agent suggested or advised or forbade the use of means for shipping the mare while she was in the charge of the plaintiff’s agent,., this was not an assumption of possession sufficient to charge the defendant as a common carrier in this action.
    SEVENTH PRATER — (GRANTED.)
    Sven if the jury find a delivery, yet if they further find that after such delivery the plaintiff’s agent interfered to con-trol the shipment of the animal, and was so doing at the time the injury occurred, plaintiff is not entitled to recover.
    And the court granted the third and seventh instructions prayed, but refused all the others; to which refusal, as to each of the instructions so refused, the defendant, by its counsel, excepted.
    It is not necessary to state the instructions asked for by the plaintiff, as they were covered by the general charge of the court to the jury, and the portions of the charge to which exceptions were taken by the defendant are related in the opinion. The jury returned a verdict in favor of the plaintiff for ten thousand dollars, and the cause is here upon the foregoing exceptions.
    
      R. T. Merrick, with whom was Bernard Carter, of Baltimore:
    The rulings of the court below, assigned for error on this motion, are embraced in two bills of exceptions.
    The first bill of exceptions relates to a question of evidence.
    The second and third bills of exceptions relate to the instructions granted by the court to the jury.
    We shall first consider the second bill of exceptions.
    And, in considering the rulings of the court therein embraced, we shall first consider the charge of the judge. This charge will be found to contain a comprehensive and accurate statement of all the law necessary or proper to have been given to the jury in the case. It disposes of all the real questions of law in the case. The propositions embraced in this clause are as follows:
    1st. That to charge the defendant with the strict law applicable to common carriers of freight and the responsibilities thereby imposed, the evidence must show that there was a complete delivery of the animals in question to the defendant, and that until such complete delivery the said responsibility did not commence.
    2d. That in order to determine whether there was in this case such a complete delivery as would charge the defendant as common carriers, the jury are first to take into consideration the evidence showing that at the depot of defendant there is a yard surrounded with an inolosure and supplied with a platform alongside of the railroad for loading horses, with apparatus for getting horses on the platform from the yard and from the platform into the cars, and if they find these facts, then these premises thus inclosed are to he considered as the place for receiving freight. Then, having-ascertained this, if they further find that, in pursuance of a contract made the day previous with the defendant by the plaintiff for the transportation of the four horses, one of which was Australia, these horses were taken to and admitted within the above-mentioned inclosure and into the said yard, and the proper agents of the defendant notified that the horses were there to be shipped, and that so being notified the horses were led up from the yard on to the platform, and the loading into the cars commenced, and in good part finished, by the shipment of three of the horses, and that the agents of defendant as well as the persons sent by the plaintiff in charge of the horses, in pursuance to the agreement as previously made, were engaged in this business of loading said four horses, then, in the opinion of the judge, all these facts taken together would establish such a delivery of the animals as to raise the strict responsibility of a common carrier.
    3d. But even if there was complete delivery found by the jury, yet the defendant still would not be responsible for the injuries of the animals if they occurred in the loading, and these injuries were occasioned by the negligence or misconduct of the persons sent by the owner in charge of the animals. We submit that if there was any error in this charge it was committed against the plaintiff instead of the defendant. The defendant takes no exception to all that part of the charge which is embraced in the first and third of the points into which we have divided and epitomized the charge. It is only to„tke second point or division that the exception goes. So far as the point decided in the third division is concerned, viz, that plaintiff, even after delivery, is responsible for the acts of his servants accompanying the animals, some cases have held that the owner, is not responsible for such acts, but that such persons become practically the agents of the carrier.
    
      But, as we have said, if there beany error here it is all in favor of defendant, and of course i cannot complain. We think, however, reason and authority b clearly with the learned judge in his view of the case in tbs part of the charge as well as in all other parts of it.
    The only question, therefore, raisedby the exception to the charge is to the rulings of the court in the charge on the question of delivery. The animals wore freight, and therefore the general law relating to the carfage of freight applies, except so far as it is modified by the fict that they are animals, and that persons to take charg< of the animals are, by the contract made the day previous, to accompany them. ’
    What, then, is the law relating to the Nation delivery bears to the beginning of the responsibility o’ the carrier, as applied to freight generally ? This is well s (fried in the authorities. ’
    1st. The responsibility of the carrier begins whenever and as soon as the goods have been delivered b and accepted by him for the purpose of transportation. 2 Redfield on Railways; 6 Gray, 541; 11 Allen, 80, Merrit vs. Railroad.
    
    2d. Where a carrier has a usual place ior the reception of freight, and goods are placed there wib orders to ship them, and the agents of the carrier having charge of such matters are notified of their being there, tlis is a delivery of the goods to the carrier, and he is from tlat moment responsible, though they are not loaded in the’,cars. Though acceptance of the goods by the carrier is necessary to constitute delivery, this acceptance is implied from |ie delivery at the usual place with notice to the agents aid no express dissent or refusal to take them. 4 Foster N. E., 71; 4 Jones N. C., (Law,) 47.
    3d. Where the goods are sent to the depot, o' usual place for the reception of freight, in pursuance of a prvious agreement that they will be carried, of course there isro necessity to rely on the implied assent to receive them wlfcn they are placed in the depot, because here is an. expres! assent to receive them. ;
    4th. It is perfectly clear, therefore, under the.preceding authorities, that the charge of the court as to wliifc facts, if found by the jury, were sufficient to constitute a complete delivery was correct, uriess the fact that the articles to be delivered were animals, md were accompanied by persons to take charge of them, reiders said facts insufficient to constitute a delivery. Indeel, an examination of the charge will show that the charge predicated the conclusion by the jury of a complete delivery m the finding of more facts than were necessary to be found to constitute delivery under the preceding authorities.
    These authorities cbclare that where goods (and it makes no difference whethei they are animals or other subjects of freight) are carried ido the proper freight-depot to be transported, and notice o' their presence given, and no refusal to receive or transpon them made, this placing them on said premises is itself z complete delivery; and it is not at all necessary that theloading should be commenced or completed. But the ciarge did not authorize the finding of delivery simply on tie finding of the facts just mentioned, but required the juryto be further satisfied that the agents of defendant had aitually commenced the loading, and got so far in it as to loa< three out of the four horses. The charge,” in other words, ast a greater burden on us than we were really obliged tocarry. But of this of course defendant cannot complain.
    5th. It is equity clear that, so far- as the question of delivery is concerner, the fact that the freight consisted of animals makes no diffeence. So far as any distinction is made in the authorities inrference to the obligations of carriers of animals as compared vith other freight, it is only that for injuries caused to then after delivery the.- carrier, if he uses due diligence towardthe same, is not responsible for injuries caused by the inhered qualities or nature of the animals, and which no precaution could guard against.
    6th. Nor (oes the fact that the horses were in charge of their groom make any difference on the question of delivery. It is to be :emembered that their accompanying the horses Avas a partof the agreement made the day before in their transportaion.
    This beng so, as soon as the horses Avere taken into the freight-deot, and at the usual place for loading horses, and the agents of the company notified that they were brought there in pursuance of the previous agreement, and were there to be transported, and that they were there ready to be put aboard, this was of itself a complete delivery under the above authorities. The fact that men were alongside of them can in the nature of things make no difference on the question of delivery, if the above-mentioned facts were found. If goods are delivered when so placed, why not also the horses ? We call attention to the difference between the presence and conduct of the men in charge as affecting the question of delivery, and such conduct affecting the plaintiff’s right of recovery. The charge of the judge distinctly concedes that although the jury should find there was a delivery, yet the conduct of the plaintiff’s servants was to be inquired into, to determine whether such conduct caused the accident.
    Even if it be conceded that such conduct caused the accident, this does not touch the question of delivery, provided the jury found the facts hypothetically stated for them by the judge. For illustration, suppose Australia had actually been loaded into the car and the train had commenced its journey to Baltimore, yet if the misconduct of the plaintiff’s agent in the car caused the injury, the plaintiff could not recover. This shows, therefore, that provided the facts were found by the jury on which the court predicated theconclusion that such would amount to a delivery, there was a delivery even though the conduct of the men in charge while assisting in loading the horses caused the injury. The conduct of the men in charge as affecting the delivery is one thing, and their conduct as affecting the plaintiff’s right to recover is another. The charge clearly draws the distinction. We conclude, therefore, that in reality the presence of the men with the horses does not at all vary the law on the subject of delivery, provided the jury found, first, that there was a previous agreement between plaintiff and defendant that the horses were to be transported; second, that they were in pursuance of this taken to the proper place for their reception, and the agents, being notified, entered upon the work of loading; and the same conclusion would have resulted, even if the loading had not commenced.
    In addition to the authorities already quoted in reference to other species of freight, we refer to the following, in which it will be seen it is declared,'in cases where it happened animals were the kind of freight in question, that the delivery is complete in law from the moment the animals are on the premises of carrier, and he evidences by word or act the assent of his mind to take possession of them; and this is the case notwithstanding the animals come and remain in charge of a driver or other persons. (See the following cases: 1 McCord, S. C., 446, Cohen vs. Hume; 2 Bed. on Bail., P., 130, note) 5 Missouri, 37, Pomeroy vs. Donaldson; 37 Mississippi, 691, Powell vs. Mills-, 4 Ohio State Rep., 743.)
    
      Walter 8. Cox, with whom was James A. Buehman of Baltimore, for defendant:
    At the hearing of this appeal the defendant, by its counsel, will respectfully contend that the motion for a new trial should be granted for the following reasons:
    1st. Because the court below erred in refusing to allow the defendant’s witness, Koonz, to answer the question whether in fact the mare was delivered to him, because, as delivery to the owner or its agent may be either actual or constructive, the defendant had a right to inquire whether there was any actual delivery to it or its agent Koontz. (See 2 Redfield on Law of Railways, p. 48, section 6.)
    2d. Because the court below erred in refusing defendant’s first prayer, because that prayer correctly stated the law applicable to the evidence in the cause, and should have been granted. White vs. Winnimisset, 7 Cushing’s Reports, 155; Wilson vs. Hamilton, 4 Ohio State Reports, 722.
    3d. Because the court below erred in rejecting defendant’s second prayer, as said prayer is a correct statement of the law applicable to this case. As it was necessary for the defendant, or its agents, to have exclusive, possession and control of the mare before the liability of defendant .attached, how could any defect in the means and appliances furnished by the defendant for loading the mare affect the question of its liability? (See Harris vs. Northern Indiana R. R. Company, 20 N. Y. Reports, 232; 2 Redfield’s American Railway Cases, 368-373.)
    
      4th. The court below properly granted the defendant’s third prayer, but erred in refusing its fourth prayer, as said fourth prayer is a correct statement of the law applicable to the Gase, and should have been granted. (See 2 Redfield on Railways, p. 41, section 155, and cases cited in note 12; particularly White vs. Winnimisset, 7 Cushing, 155; Wilson vs. Hamilton, 4 Ohio State Reports, 722; 2 Redfield on Railways, 49, sec. 156, sec. 7, and cases cited in note 7; Story on Bailments, 487, sec. 532, 488, note 1, 489, sec. 533, and cases cited in notes 3 and 4, sec. 537, 567, and 578.
    5th. And the court below erred in refusing the defendant’s fifth prayer, for the reasons and upon the authorities given and cited under the fourth point. And, moreover, it is respectively submitted that until delivery the extraordinary liability of a common carrier does not attach, so as to make such a carrier responsible for the unathorized acts of third parties.
    And it is respectfully submitted that the portion of the judge’s charge excepted to by the defendant does not lay down the law of delivery as applicable to the case at bar, and therefore the motion for the new trial upon exceptions should be granted. (See Story on Bailments, 486, sec. 532; 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. Winnimisset, 7 Cushing 155; Wilson vs. Hamilton, 4 Ohio State Reports, 722; 2 Redfield on Railways, 48, sections 156-7, and cases cited in note 7.)
   Mr. Justice MacArthur

delivered the opinion of the court:

The question asked the witness Koontz, whether the mare for whose injury the action was brought had been in fact delivered to him, was not allowed to be answered by the court, and we think the ruling was right. Other witnesses had already stated the facts and circumstances of the delivery, and it was manifestly a question to be determined by the court and jury upon the evidence.

It is urged that the court below erred in refusing several of the instructions asked for by the defendant’s counsel, and in that portion of the general charge to the jury relating to the subject of delivery. It is now well settled that whether freight has been delivered to a common carrier so as. to fix his responsibility, is a mixed question of law and fact. The circumstances that really took place must be submitted to the jury, but whether they amount in law to a delivery is properly within the province of the court. There is no doubt that delivery must transpire in order to create the liability of the railroad as a common carrier. This is usually shown by proving that the freight was sent to the place where it is the habit of the carrier to receive it, accompanied by notice to him that it is there for transportation. If there is a special agreement with the company to convey the property, the special circumstances required by the contract are to be taken into consideration; or if there is anything peculiar or exceptional in the nature of the property, that also may have a bearing upon the decision. In the present case we think the charge of the court adhered to these familiar principles.

In the remarks of the court which are excepted to, the jury are told in substance that if they believe the defendant had a yard at their depot in this city, surrounded by an inclosure and having a gate by which horses and other animals are admitted therein, and that such animals are led from this inclosure on to the platform, and then pass over a gangway into the car which is to transport them, that such inclosure is to be regarded as the place provided by the railroad company for the reception of freight of this description.

The charge then says :

“Now, then, one step further. If it should appear to you from the testimony in this case that a contract was entered into by which four horses were to be transported from this city to Baltimore by the defendant, on its railroad, and that the execution of this contract was to commence on the day following; and these horses were taken to this inclosure and admitted to it, the officers having notice that they were there for the purpose of being shipped; and if you should further believe that from the yard they were led up on to the platform ; that the process of loading had absolutely been commenced, and in a great measure completed by the shipment of three of the animals; and that the agents both of the company and of the persons who had been delegated by the owner of the horses to attend them, were engaged in. this business; then I think that the facts would establish a delivery ot the animals so as to raise the strict responsibility of a common carrier in regard to them.”

This instruction is excepted to on the ground that it does not appear that the horse in question had been surrendered into the exclusive control and possession of the defendant’s agents. This objection seems to overlook the special agreement, by the terms of wliich the horses were to be accompanied by their trainer and three or four other attendants. They were valuable race-horses, and the agreement was certainly a prudent and wise one, and should be so construed as not to relieve the defendant any further than its plain import will sanction. Its reasonable and natural meaning undoubtedly is, that the defendant agrees to accept the horses and carry them and the attendants who were to accompany them on the passage. There was no waiver of the strict responsibility of the defendant as a common carrier any further than it might be modified by the fact that persons were to be sent by the owner along with the property. In the light of this interpretation the facts referred to in this part of the charge would clearly constitute a delivery. But it is further objected that the jury were also told this delivery would raise the strict responsibility of a common carrier in regard to the animals; and if the charge stopped there, perhaps the exception would prevail. But both before and after the above-cited passage, the jury were instructed that the special agreement, by the terms of which the owner was to send his servants with the property, had an important bearing upon the responsibility which the court had described to them as belonging to the character of a common carrier. On pages 14 and 15 of the printed record is the following language in the charge to the jury:

“The reception and transportation of a horse must be accompanied by different circumstances and by different incidents from the transportation of a bale, or of a box, because, to a certain extent, it is gifted with intelligence, and appetite, and volition, and is liable to sickness and death from natural causes, and when an accident occurs from any of these incidents the common carrier is not responsible. It appears from the testimony in this case that these were horses of a peculiar kind, race-horses of great value, and the one injured of rare qualities; under these circumstances an arrangement of this kind is approved by motives of public policy, as well as required by the necessities and interests of individuals, that living freight, as in this instance, should be accompanied by persons employed by the owner to look after it during the journey, and it is a right as well as a righteous, concession on the part of the common carrier to recognize such arrangements and carry them out. You will at once see that this being the case it must have an important bearing upon the strict responsibility which I have described as belonging to a common carrier. Under such an arrangement the servants of the owner himself, if he accompanies their freight, are in no sense the agents of the common carrier so as to make him responsible for their conduct or misconduct. It is by an arrangement between the parties that this is permitted to be done, and, 1 apprehend, while it accommodates both, each of them must be responsible for their own acts; and the acts of a servant of the company is the act of the company itself, and the act or conduct of a servant of the owner of the property must likewise be considered in law his act, and this must be the measure and grade of their responsibilities 5 that is, each of them must be responsible for their own acts.
“When the agents of both parties are present at the occurrence of an accident and co-operating together at or about the same time, it will always involve very fine discrimination and good judgment to lay the blame where it properly attaches. That will be your duty in this case. There is no difficulty in laying down a general principle, and I instruct you that as a general principle the parties, as I have before stated, must be responsible for their own acts. If the accident occurred through want of skill or from negligence of the agents of the company, they are liable for any damage.
“If the accident occurred through the conduct or the acts of the agent of the owner, the company would not be responsible.
“Now, this is the general principle which I think should regulate, and which I instruct you in matter of law does regulate, the liability and responsibility of these parties in a case-of this description.”

Now, while the portion of the charge excepted to lays down a general principle in the case, it is of course to be taken with the qualifications just read. What is material cannot all be said at the same time, and the different parts are to be considered in order to obtain a fair exposition of the whole. It is quite clear from this examination that while the jury were informed of the circumstances which would show a delivery and fix upon the defendant the liability of a eommon carrier, yet they were also told that as in this case there was a special contract for the transportation of the horses, the conduct of the owner’s servants might be inquired into, and if their act or negligence caused the accident, the defendant was not responsible. It was also left to the jury to decide whether there was a delivery, for there must be á delivery before the plaintiffs could recover, and that the defendant was only liable for the conduct of its own agents. Upon this view We are inclined to think that there was no error in the charge.

We believe that these observations dispose of all the prayers of the defendant that were-refused except, perhaps, the fourth one. Ey this prayer the jury were to be instructed that if the plaintiff’s agent declined to deliver the znare to defendant’s agent the company would not be liable if said agent forbade efforts to ship the mare, and she suffered the injury complained of by the acts of the plaintiff’s agents or of other parties in an attempt to load her. This was simply saying if there was no delivery there was no liability, and the jury were told this more than once, no matter how the injury happened or by whom or what it was occasioned. The prayer is rather complicated in the hypothetical assumption of facts and would have confused if not misled the jury. They had been informed in the prayer immediately preceding that the plaintiff could not recover without proving that he delivered the mare to the defendant. The same thing was repeated in the charge. So that it matters not what were the orders of the defendant’s agent, or whether the plaintiff’s servants or others caused the injury, in the absence of delivery. The viee of the prayer is that it involved the consideration of circumstances wholly immaterial if there was no delivery.

Upon the whole, we are not disposed to disturb the judgment.  