
    Henry Haner and Jacob Deyo, Respondents, v. James C. Fargo, as President of the American Express Company, Appellant.
    Third Department,
    March 3, 1915.
    Carrier — negligence — transportation of animals in cars—violation of Federal statute limiting time of confinement—agreement by shipper to care for animals personally — illness of animals after reaching destination—evidence — proof not establishing negligence of carrier.
    Although the Federal statute provides that carriers transporting horses shall not confine them in cars or vessels of any description for a longer period than twenty-eight consecutive hours without unloading them for rest, feeding, etc., except where prevented from so doing by accidental causes, one who ships cattle under a contract providing that he shall load and unload the animals at his own risk whenever necessary during transportation, cannot recover for a violation of the Federal statute where the animals were confined in cars for five hours in excess of the statutory period and developed pneumonia after reaching their destination, if during transit he made no request that he be given an opportunity to unload, feed and rest them.
    Where the cars were amply provided with ventilators and windows and the plaintiff accompanied the animals himself, he cannot recover for injuries to them upon the theory that the defendant was negligent in failing to furnish proper ventilation.
    Mere proof that the animals, having been confined in the cars five hours longer than the statutory period, developed pneumonia after reaching their destination does not, standing alone, establish that the negligence of the carrier was the cause of said disease.
    Appeal by the defendant, James 0. Fargo, as president, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Greene on the 19th day of November, 1913, upon the verdict of a jury for $2,387.50, and also from an order entered in said clerk’s office on the 25th day of November, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      Visscher, Whalen & Austin [H. Leroy Austin of counsel], for the appellant.
    
      Brinnier & Canfield [ William D. Brinnier of counsel], for the respondents.
   Howard, J.:

The plaintiffs were horse dealers; they resided at Catskill, N. Y. In February, 1912, they purchased at Chicago twenty-eight horses. They entered into a written contract with the American Express Company, of which the defendant is president, to ship the horses to Catskill. Under said contract the plaintiffs agreed to take care of the horses while they were on the road. One of the plaintiffs accompanied the horses, on free transportation furnished by the defendant for that purpose. The plaintiffs also in writing requested the express company not to unload the horses in transit. This request was made by authority of section 1 of chapter 3594 of the act of Congress of June 29, 1906 (34 U. S. Stat. at Large, 607); otherwise it would have been the duty of the express company under the law to unload the horses for feed, water and rest after twenty-eight hours. In order to feed and water and rest the horses it would have been necessary to unload them from the car. Hot to exceed thirty-six hours was the length of time, according to the regular train schedule, which the plaintiffs stated in writing that they understood the trip would consume. The horses were sent on and arrived at Catskill some hours late — the plaintiffs say five hours; the defendant says - about two. The animals were taken by the plaintiffs to their stables and very soon after they arrived there some of them developed contagious pneumonia. All of them subsequently were afflicted. One horse died in about forty hours after its arrival. Twenty-two out of the twenty-eight died within two weeks.

The complaint alleges that the death of the horses was caused by the negligence of the defendant. Four specifications of negligence are asserted. First, that the defendant failed to furnish the kind of car agreed upon; second, that the horses were delayed on the road an unreasonable length of time beyond the thirty-six hours; third, that the defendant closed the ventilators of the car so that the horses were deprived of sufficient air; fourth, that in violation of the Federal statute the defendant detained the animals on the road more than thirty-six hours without affording the plaintiffs an opportunity to unload, feed, water or rest them; and refusing plaintiffs such opportunity.

The last specification may be considered first. By written agreement the plaintiffs contracted that The Shipper agrees to load, transship and unload said animals at his own risk, and during the transportation thereof to unload and load said animals whenever the same may be necessaiy or required, at his own risk, and to furnish the necessary laborers therefor; and further agrees to cause the necessary attendants to accompany and take charge of said animals. * * The Federal statute forbade the defendant to confine the horses beyond thirty-six hours without unloading, feeding, watering and resting them unless prevented from so doing by accidental causes. The defendant very evidently expected to comply with the law. The regular train schedule time of the railroads over which the defendant was forced to send the car and which it did not own and could not control indicated that the horses would he landed in Catskill within thirty-six hours. Accidental causes delayed the train somewhat. But even if these accidental delays can be said to have been sufficient to have required that the horses be unloaded and cared for, the plaintiffs had contracted with the defendant to do that themselves. Therefore, even though the defendant may not have a sufficient excuse to offer to the Federal authorities, it has relieved itself from liability to the plaintiffs by the written contract. But it is very apparent that this subject is an afterthought of the plaintiffs. The plaintiff Deyo, who accompanied the horses to take care of them, never requested that they be unloaded for rest, etc.; he never intimated that he wished it done; evidently he never thought of it. He did not consider it necessary or desire it done. It is idle to say that the defendant refused to permit him to do it.

In close connection with the fourth specification comes the third, the allegation concerning the lack of ventilation. Deyo went with the horses to take care of them. He seems to have taken very little care and to have paid very little attention to the horses. The car was equipped with forty ventilators besides windows. If the car needed ventilation it was Deyo’s duty to open the ventilators or to cause the defendant to do so. He made no effort in that direction. He made no complaint, according to his own testimony, except at Detroit; and then instead of staying by the horse car and attending to the matter as was his duty, he went away after a few minutes. The plaintiffs cannot hold the defendant for something which it was their duty to attend to. (Penn v. Buffalo & Erie R. R. Co., 49 N. Y. 204.)

The contention that the defendant failed to furnish the kind of car agreed upon, the plaintiffs do not seem seriously to urge. But the evidence is overwhelming that the car was one of the very best horse cars owned by the Arms Palace Horse Car Company. It was built in the Pullman shops and was one of the largest and finest of that type of cars. Clearly no negligence can be predicated on the assertion that the car was not up to contract.

What caused the horses to be sick ? There is some evidence that several of the horses had just come, out of a hospital and were infected with the disease before they were put in the car. But the jury seems to have rejected that evidence. The allegation of negligence which the plaintiffs most vigorously urge is the fact that the horses were delayed on the road more than thirty-six hours and thereby made sick. There is a serious conflict of evidence as to the length of this delay, but the jury has found with the plaintiffs, and, therefore, assuming that the horses were kept in the cars five hours longer than they should have been kept, the question arises, did this delay cause the sickness ? The defendant cannot be charged, it must be rómembered, for the first thirty-six hours. That was not negligence; the defendant had a right to consume that length of time in transporting the horses. By keeping the horses on the road beyond the thirty-six hours, were they made sick — sick with contagious pneumonia ? If the train had arrived within the thirty-six hours would the horses' have remained well ? The record seems to be barren of evidence which answers these questions. The veterinarians have thrown no light upon these questions! Lack of food and drink and rest for five hours might hasten the development of this disease, the doctors say, but not cause it. The expert evidence discloses that the disease from which the horses died is a contagious disease; that is, it is a germ disease, and the germs are transmitted in many ways. The germ must reach the horse or he cannot have the disease. The disease does not arise from fatigue, hunger or thirst. There is some evidence that horses weakened by a long trip like this, without rest, food or water, would be less capable of throwing off disease than fresh well-fed horses. " But this surely does not amount to proof that this violent, highly contagious disease could have been repelled by these horses had they landed in Catskill five hours sooner. Assume, then, that the defendant was negligent in detaining the horses on the road five hours beyond the thirty-six provided by the contract, where is the evidence to show that this negligence caused the horses to be sick ? There is no such evidence and, therefore, the verdict is without support and must he reversed.

All concurred.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The finding of fact of which this court disapproves is that the defendant was guilty of negligence.  