
    Clarke and another against The Rochester and Syracuse Railroad Company.
    The liability of a common earner of animals is not, in all respects, the same as that of a carrier of inanimate property,
    t But the liability of a railroad company, engaged as a common carrier of animals, is not limited to the careful and safe conveyance of the car containing them.
    ' In the absence of a special agreement, the company ig responsible for any injury which can be prevented by foresight, vigilance and care, altlmugh arising from the conduct of the animals.
    
      *But the carrier is not an insurer against injuries arising from the nature and propensities of the animals, and which diligent care cannot prevent. As to damage arising from other causes, the liability is the same as that of a carrier of other property. 
    
    The action was brought, in the supreme court, to recover damages for the loss of a horse, by means of the alleged negligence of the defendants as common carriers. On the trial before W. F. Allen, J., at the Oneida circuit, in October, 1853, it appeared that the plaintiffs embarked four horses on one of the defendants’ cars, at Rochester, to be carried, for hire, eastward the whole length of the defendants’ road, and beyond, and that when the train arrived at Auburn it was found that one of them was dead. This horse had a halter around his head and nose, which was tied to a staple driven into the side of the car. When found, he was lying upon his side, his head still held up by the halter, and blood was running from his nostrils.
    On the part of the defence it was shown that one of the plaintiffs was present when the horses were put into the car, and assisted in fastening the one which was killed. It appeared that one of the plaintiffs was allowed, in the bargain for the carriage, a passage for himself on the train which carried the horses, there being a passenger car attached to that train, but that he in fact took passage in a passenger train of the defendants, which started at a later hour, and which passed the cattle train before it reached Auburn. There was evidence, pro and con., as to whether this car was a suitable one for the transportation of horses, the plaintiffs’ witnesses testifying that it was too low, and those of the defendants that it was one of the kind commonly used for carrying horses.
    
      The defendants’ counsel moved for a nonsuit, on the ground that the defendants were not responsible for the class of injuries which result, wholly or in part, from the conduct of animals entrusted to them to carry. They also contended that it was the duty of the plaintiff, under the facts proved, to have gone in the train with the horses and to have taken care of them, and that the defendants’ duty was limited to transporting the car which contained them in safety. The motion was denied,. and the defendants excepted.
    The judge left it to the jury to determine whether, by the contract,' the plaintiff was to go with the horses and take care of them, stating that in that case the defendants were not responsible. He charged that, if such was not the contract, the defendants were responsible, unless the injury was received by a danger incident to this mode of carriage of this species of property, and which the defendants could not, by the exercise of diligence and care, prevent, or by inevitable accident; that, in the absence of any agreement to the contrary, it was the business of the defendants to provide a person to look after the horses on their passage, if their safety required such oversight. The defendants’ counsel excepted, and there was a verdict for the plaintiffs. The judgment having been affirmed at a general term in the fifth district, the defendants appealed.
    
      E. G. Lapham, for the appellants.
    
      F. Kernan, for the respondents.
    
      
       This case was decided at June term, 1856, when it was assigned to Denio C. J., to state the reasons of the court for the judgment. His opinion was not handed to the reporter until after the decisions of that term were reported, and hence it is inserted here.
    
   Denio, C. J.

The fact that the plaintiff was allowed a passage for himself on the train in which his horses were carried did not prove conclusively, if at all, that he was to | attend to their safety during the journey. It may very well be that he desired to be present at the time and place of delivery in order to take care of them there, and that the privilege of taking passage in the same train was allowed him for that purpose. The charge which permitted the jury to find an agreement which would relieve the defendants from the obligation to keep an oversight of the animals was as favorable to them as they could require.

As to the carrier’s liability respecting the transportation of this sort of property, several theories have been suggested on the argument and in our consultations upon this case.

The plaintiffs contend for the rule that the carrier is bound to transport in safety and deliver at all events, save only the known cases in which a carrier of ordinary chattels is excused, while the defendants maintain that they are not insurers at all against the class of accidents which arise from the vitality of the freight. We are of opinion that neither of these positions is well taken. A bale of goods or* other inanimate chattel may be so stowed as that absolute safety may be attained, except in transportation by water, where the carrier usually excepts the perils of the navigation, and except in cases of inevitable accident. The rule, established from motives of policy, which charges the carrier in almost all cases, is not therefore unreasonable in its application to such property. But the carrier of animals, by a mode of conveyance opposed to their habits and instincts, has no such means of securing absolute safety. They may die of fright, or by refusing to eat, or they may, notwithstanding every precaution, destroy themselves in attempting to break away from the fastenings by which they are secured in the vehicle used to transport them, or they may kill each other. In such cases, supposing all proper care and foresight to have been exercised by the carrier, it would be unreasonable in a high degree to charge him with the loss. The reasons stated by Chief Justice Marshall, in pronouncing the judgment of the supreme court of the United States, in Boyce v. Anderson (2 Peters, 150), have considerable application to this case. It was there held that the carrier of slaves was not an insurer of their safety, but was liable only for ordinary neglect; and this was put mainly upon the ground that he could not have the same absolute control over them that he has over inanimate matter. /Where, however, the cause of the damage for which recompense is sought is unconnected with the conduct or propensities of the animal undertaken to be carried, the ordinary responsibilities of the carrier should attach. Palmer v. The Grand Junction Railway Company (4 Mees. & Wels., 749) was the case of an action against a railway company for negligence in carrying horses, by which one was killed and others injured; but the damage was occasioned by the carriages running off the track of the road down an embankment, and the case did not turn at all on the peculiarity of the freight, but mainly on the question whether the defendants had limited their responsibility by a notice. The jury found that notice had not been given and that the defendants had been guilty of gross negligence. .Mr. BaronParke, in giving the opinion of the court, declared that the common law duty of carriers was cast upon the defendants. The precise question now before us was not discussed., but it was assumed that the law of carriers applied to the case. There is no reason why it should not, in all cases of accident unconnected with the conduct of the animals. But the rule which would exempt the carrier altogether, from accidents arising out of the peculiar character of the freight, irrespective of the question of negligence, would be equally unreasonable. It would relieve the carrier altogether from those necessary precautions which any person becoming the bailee, for hire, of animals is bound to exercise, and the owner, where he did not himself assume the duty of seeing to them, would be wholly at the mercy of the carrier. The nature of the case does not call for any such relaxation of the rule, and, considering the law of carriers to be established upon considerations of sound policy, we would not depart from it, except where the reason upon which it is based wholly fails, and then no further than the cause for the exception requires.

We cannot, therefore, assent to the position of the counsel for either of the parties in this case. The learned judge who tried this case gave to the jury the true principle of liability in such cases. Laying out of view the idea of inevitable accident, which it was not pretended had occurred, he instructed them that the defendants were responsible, unless the damage was caused by an occurrence incident to the carriage of animals in a railroad car, and which the defendants could not, by the exercise of diligence and care, have prevented. This accords with our understanding of the law.

There was sufficient evidence of negligence to be submitted to the jury. Besides what was said by the witnesses as to the size of the car, it was quite probable that if a proper watch had been kept the horse would have been saved from strangulation. It was for the jury to say whether prudence did not require that a servant of' the defendants should have been stationed in or about the horse-car, so as to observe the conduct and condition of the animals constantly or at short intervals.

We think no error was committed on the trial to the prejudice of the defendants, and that the judgment should be affirmed.

Judgment accordingly.  