
    The Cincinnati, New Orleans and Texas Pacific Railway vs. Disbrow & Company.
    [This casa -«as argued at the last term, and the decision reserved.]
    Where suit was brought for damages to live stock, occurring from waiit of proper feeding, watering and attention during a through shipment over a railroad and its connecting lines, and the plaintiffs contended that the only written contract of shipment was contained in the bill of lading, and that one of them had a certain verbal agreement with the agent of the defendant as to obtaining a free ticket, or a ticket at a reduced rate; while the defendant contended that the shipment was made under a special written contract, signed'by its agent and'the person who delivered the stock as the agent for the plaintiffs, in which contract it was specified a ’ that one of the plaintiffs was to Accompany the stock on the route, and to attend to loading, unloading and watering them, and to relieve the company from all responsibility for their safe transportation, except such damage as resulted from defendant’s negligence; and where it appeared that the person delivering the stock to the defendant returned to one of the plaintiffs the contract which wAa signed in duplicate, together with the bill of lading and an order for a ticket at reduced rates, and that such plaintiff obtained the ticket, and traveled upon a passenger train, instead of the train containing the stock, the court should have submitted to the jury whether the contract of shipment was that contended for by the plaintiff or by the defendant; and if they found the latter, whether the injury complained of resulted from the plaintiffs’ failure to .comply with the stipulations of the written contract or from the negligence of the defendant; and it Was error to withhold this issue from the jury.
    
      (a.) The defendant having shown that the written contract relied on by it was signed in duplicate, and that the contract in their possession had been destroyed by a flood, and the plaintiffs failing to produce that in their possession or in any manner account for it, the defendant could introduce a copy of the contract in evidence.
    June 1, 1886.
    Contracts. Railroads. Live-StocK. Evidence. Charge of Court. Before Judge Marshall J. Clarke. City Court of Atlanta. June Term, 1885.
    Disbrow & Co. brought suit by attachment against the Cincinnati, New Orleans and Texas Pacific Railway Co. for damage to certain live stock shipped over defendant’s road. By amendment, the damages were laid at $2,100.00.
    On the trial, the evidence for the plaintiffs was, in brief, as follows: H. C. Bussey, ^ member of plaintiffs’ firm, went to Cincinnati in the spring of 1883. Plaintiffs bought twenty horses, which were kept at the stable of Thompson & Leonard. Some of the horses were kept for several days, others a shorter time. Bussey made an agreement with the soliciting agent of defendant to ship the horses to Columbus via Atlanta. They were in good condition when shipped. Bussey made an agreement with said soliciting agent that the latter should receive the stock and send them through to Columbus for $140.00, and $2.00 extra for bedding. They were to be delivered for shipment by 4 o’clock p. m., and were to be delivered in Chattanooga at 6 o’clock the following evening. The defendant’s agent stated that the time required between Cincinnati and Chattanooga was 26 hours. The stock were at the depot at 4 i>. m., arid were shipped over defendant’s road on April 7,1883.
    Bussey testified that he made no written contract with defendant’s agent, but it was agreed that Bussey should have a half-fare ticket on the passenger train, or he might have ridden on a freight train, he supposed. Such tickets were given as a matter of courtesy where car-load lots were shipped, and Bussey did not think it obligatory to accompany and take care of the stock. The stock were delivered to defendant by Thompson & Leonard through an employe of theirs named Hurley. He had no authority to contract with the road for plaintiffs, but only to deliver the stock. Some four hours .after the delivery, Thompson & Leonard brought to Bussey a live stock contract, which Hurley had signed for the plaintiffs. Bussey took it and made no objection, and gave no notice to the road of any objection. On authority of the railroad receipt, Bussey got a half-rate ticket on the passenger train. The agent of defendant said that it was not necessary to feed or water the stock between Cincinnati and Chattanooga, as the defendant had reduced its schedule, and it only required 26 hours to make the trip; he also stated that Bussey could leave Monday morning (that being Saturday afternoon), and overtake the stock at a point near Chattanooga, and go to Atlanta on the train with them. He left Monday, but by reason of an accident to the engine did not reach Chattanooga until late at night, and did not see the stock until next day in Atlanta. Plaintiffs paid for feeding the stock in Chattanooga. Defendant had no conveniences for feeding and watering stock between Cinciñnati and Chattanooga. Twenty-eight hours is as long as horses can safely be carried without food or water, and even a short time beyond that is likely to injure them; after that, they become heated, and are in danger of taking cold or having pneumonia or lung fever. The car reached Chattanooga April 9, and was forwarded the same evening. One witness testified that all the horses were in apparently good Condition, except one, which was dead; that the car was in gopd condition, except that the bedding was poor. Another testified that it was not customary to feed stock between Cincinnati and Chattanooga, and there was no concession made that he remembered. When the horses were received in Atlanta at a stock-yard, they were in bad condition. Two were nearly dead. A witness stated that he thought one was dead, and two died at the yard. Keeping stock in a car too long,, and then' feeding and giving them cold water, would produce such results. Change of climate, difference in water, etc., might have some effect, but not to the extent of that in this case.
    The bill of lading was dated' April 7,1883, and was for twenty horses to be shipped to Columbus, Georgia, via Atlanta, and had the word “ released ” written across its face. Bussey testified that this meant that the road was not liable unless negligent-. He was shown a paper, which he stated appeared to be a copy of the live-stock contract,1 which Hurley signed, and which had on its face a valuation on the stock of one hundred dollars per head. He detailed at length the values of the animals, what they sold for, etc. The route by which they were shipped was over defendant’s road to Chattanooga, thence by connecting roads via Atlanta to Columbus. . They reached their destination (except three that died and one which was left in Atlanta with a veterinary surgeon) about April 13th to 15th, and plaintiff received and paid the freight on them-.
    The bill oí lading was from Cincinnati to Columbus, Ga.; car-load of horses (twenty head), freight $140.00, “released,” and in the printed heading occurs the statement that its responsibility as a common carrier is to terminate when delivery is made to the next carrier.
    The' evidence for defendant was, in brief, as follows: Plaintiff’s agent loaded the car at Cincinnati, and accepted it. It is usual to allow a shipper a free ticket to accompany his car. This car was bedded from four to six inches deep with sawdust, which was as usual. Concession* were made to plaintiff in. freight charges, and a live-stock contract was made in writing, the original of which was lost in the flood of 1884. The conductors who had charge of the car between Cincinnati and Chattanooga stated that car was properly loaded and bedded; that it went through according to their schedule tiine, and that the stock seemed in good condition, except one horse, which was seen to be dead soon after leaving Cincinnati. Hurley testified for. defendant that he was employéd by Thompson & Leonard; that he fed and watered the horses, and put them in the car, which was bedded with sawdust, and all right • and that he obtained an order for a cheap ticket, and gave it to Bussey.
    Green, the agent of defendant at Atlanta, testified that the contract shown him was a release contract; that the rate was about one-third the regular rate; and that a release contract releases from. any injury, except that caused by negligence of the employes of the road. Generally, though not always, when .the word “ released ” is on the bill of lading, there is also a separate release contract.
    Defendant tendered in evidence a copy of the original live-stock contract, which one of the witnesses attached to his answers to interrogatories, stating that the original had been lost in the flood in Cincinnati in 1884. This • contract stated that, in consideration of a special rate, the' shippers agreed to' load, unload, feed, water and take all ¡ proper care of the stock, and assume all risks and damage;, except such as might arise from gross apd wanton negli, ■ genceof the company; and declared the value of the stock; not to exceed $100.00 per head. The lasts; clause stated! that “in witness,” etc., the agent of the company and ¡the1 owner of the stock, or his authorized agents;.hadiaffixed' their signatures to two copies of the agreement.. It' was. signed by the agent of the defendant and by. “ Disbrory & 
      Co., per Hurley, owner.” (The record has erroneously “Hadley.”) This was rejected.
    The jury found for plaintiffs $1,010.00. Defendant moved fur a new trial, on the following grounds:
    (1 j to (5.) Because the verdict is contrary to law, evidence, justice and the charge of the court.
    .(6.) Because the verdict of the jury is contrary to the following charge of the court, to-wit: “ The plaintiffs have introduced in evidence a receipt executed by the defendant at Cincinnati under date of April 7th, 1888. It is for the court to construe this instrument. I direct you that this contract binds the defendant to carry the horses safely from Cincinnati to the end of its line, and to deliver them in good condition to the next connecting road. Accordingly, if plaintiffs have a right to recover on account of defendant’s negligence, it must be for and by reason of the negligence of which it was guilty between the time when it received the horses at Cincinnati, and the time when it delivered them into the possession of the next connecting road on the line over which they were to be carried. I have said that if the plaintiffs can recover it must be by reason of the defendant’s negligence during the period which I have just named. Whether there was negligence on the part of the defendant during that period is a question of fact for you to determine.”
    (7.) Because the court erred in charging the jury as follows : “Negligence occurs also where one fails of the degree of diligence which he is bound to exercise. It is made by law one of the duties of a railroad company, whose road forms any part of a line of road over which cattle, sheep, swine or other animals are conveyed from one state to another, not to confine them in cars for a longer period than twenty-eight' consecutive hours without unloading the same for rest, water and feeding for a period of at least five consecutive hours, unless prevented from so unloading by storm or other, accidental causes.”
    . (8.) Because the court erred in charging the jury as follows: “ A common carrier is bound to exercise, in the care of property entrusted to it for transportation, extraordinary diligence. What is meant by extraordinary diligence is that extreme care and caution 'which very prudent and thoughtful persons use in securing and preserving their own property of the same kind. In case property is delivered to a common carrier for transportation, and such property is injured or lost, the presumption of law is against the carrier. In such case the law infers that the injury or loss happened by the carrier’s negligence. When this is so, no excuse avails the carrier except to show that the loss or damage was occasioned by the act of God or the public enemy, This is the general rule. In the case of the carrying of living animals, there is a qualification of the rule. The carrier is not responsible for the injury which such animals inflict on each other. Entries upon a receipt given by a railroad for freight received by it do not affect the degree of diligence required of them in taking care of such freight.”
    (9.) Because the court erred in charging the jury as follows: “ If you believe that the property in question was delivered by the plaintiffs to defendant, and it undertook to carry it and deliver it as charged, and any part of said property was not delivered in good order to the next connecting road, the presumption is, that any injury which the property suffered before it was so delivered was occasioned by defendant’s negligence, and it can relieve itself of liability therefor only in the ways which I have mentioned. If it fails by the proof so to relieve itself, the plaintiffs would have a right to recover.”
    (10.) Because the verdict of the jury was contrary to the following charge of the court, to-wit: “ If the horses were delivered by the defendant to the next connecting road in good order, as shown by the evidence, or if any part of them were not so delivered, any loss or, damage which may have happened to them was occasioned, as appears in the testimony, either by the act of God, the pub-lie enemy, or by the living animals themselves, then the plaintiffs cannot recover.”
    (11.) Because the court erred in permitting, over the objection of defendant, the witness, Bussey, to testify to an alleged parol contract with the shipping agent of defendant, when it appeared that the contract of shipment had been reduced to writing. [The judge in a note referred to the evidence to show whether there was a written contract or not.]
    (12 ) Because the court erred in refusing to allow the defendant to put in evidence the special live-stock contract. [This was the copy referred to above.]
    The motion was overruled, and defendant excepted, and assigned error on overruling each ground of the motion for new trial, separately.
    Julius L. Brown; W. D. Ellis, for plaintiffs in error, cited as follows:
    Common law, not Georgia statute, controls : Lawson Contracts Carriers, §§113, 252; 66 Ga., 485, 438 ; 68 Id., 644; 30 Id., 22-25; 19 Id,, 443 ; 33 Id., 110-112; 31 Id., 133; 32 Id., 343.
    Bill of lading is contract: 38 Am. Dec., 409, and note; 39 Id., 335, and cit.; 107 U. S., 102.
    Duty of court to charge without requests: 4 Ga., 294; 42 Id., 290.
    King & Spalding ; E. A. Angier, for defendants, cited as follows :
    Duty of railroad as to live stock : 17 Wall., 357; 37 Ind., 448; 47 Id., 471; 31 Id., 394; 30 Kans., 645; 28 Ohio St., 144; 55 Wis., 3.19: 31 Minn., 85; Rev. Stats. U. S. (2d ed., 1878), Tit. L., §§4386-4390, p. 848 ; Code, §§2065, 2066, 2067.
    Parol evidence as to making shipment: 34 Ga., 315; Code, §3804; 74 Ga., 664; Lawson Carriers, §115.
    Copy contract: Code, §3768.
    
      • Liability of carrier beyond its own line: 75 Ga., 609; 71 Id., 61; 70 Id., 533 ; 68 Id., 350,; 12 Am. and Eng. R. R. Cas., 28; 9 Id., 392; 18 Id., 565; 6 Id., 436, and notes; 7 H. L. Cas., 194; 2 H. & N., 707; 48 N. H., 338; 51 Id., 9; 54 Ill., 88; 84 Id., 239; 6 Heisk., 143; 6 Sneed, 208; 9 Iowa, 487; 36 Ohio St., 647; 63 Ala., 219.
    Presumption of negligence: 65 Ga , 631.
    Entries on bill of lading: Code, §2068; 68 Ga., 350; 73 Id., 722; 28 Ohio St., 437.
    On the sufficiency of exceptions: 69 Ga., 283, 317, 765; 68 Id., 784.
   Hall, Justice.

Disbrow & Co. brought suit against the Cincinnati, New Orleans and Texas Pacific Railway Company for damage done to live stock, shipped .over that road upon what is known as a through contract, from Cincinnati, Ohio, to Columbus, Georgia, while on the route between those points. The plaintiffs based their action on the bill of lading, which they contended -embodied the only contract of affreightment entered into and agreed upon between them and the company. The defendant company,on the other hand, insisted that, in consideration of a largely reduced rate of freight, being one-third of the freight usually charged, the plaintiffs agreed to take charge of their stock on the route and to attend to loading and unloading and watering them, and to relieve the company from all responsibility for the safe transportation of the same, except such damage as resulted from its own negligence. This special contract was made out and signed in duplicate for the plaintiffs by the person they employed to load and ship the horses, and for the company by its duly authorized agent. There is some dispute as to the authority of the person loading and shipping the stock to make this contract for the plaintiffs, one of whom was present, and who alleges that he made a different arrangement from that entered into by the person who had charge of the shipping of the horses, and which contained no such terms and conditions as those embodied in the special stock contract; but it is evident that one of these duplicates was delivered to the member of the plaintiffs’ firm who was present and conducted, as he alleges, the negotiations for the transportation of the stock; with this duplicate there was an order for a ticket, which entitled Mr. Bussey, the member of the plaintiffs’ firm mentioned, to a free ride over defendant’s road and other connecting roads from the place of his departure to his destination; of this he made use; he did not accompany the stock himself, nor did he furnish a hand to do so and care for 1 hem. The defendant contended that the loss of the horses was attributable solely to the plaintiffs’ want of care, which, by the terms of the contract, they took upon themselves, and not to its fault or negligence. The material issue between the parties was, whether their contract was that arising upon the bill of lading, or whether their respective rights and liabilities depended upon the alleged special contract. If it was the former^ there may, probably, be less doubt as to the correctness of the finding, but if their rights and liabilities are to be measured by the latter, then the verdict is wrong. The complaint, as set forth in the 11th and 12th grounds of the motion for a new trial, is, that this issue was withheld from the jury, and that they were not allowed to pass on it, by reason of the rejection of a copy of the written contract., it being shown that the duplicate in possession of the defendant had been destroyed by a flood, and that the plaintiffs failed to produce that in their possession, or in any manner to account for it; indeed, it is apparent that they attached no importance to it, and that it was laid aside, and no care whatever was taken to preserve it. While accepting defendant’s ticket to ride on the cars, which went along with the duplicate delivered to Mr. Bussey, the defendant was not notified that they repudiated the special contract containing the stipulations and conditions mentioned. Under thb circumstances, we are of opinion that the defendant had a right to this evidence, as well as the right to have submitted to the jury, whether the shipment was made under the contract set up by the plaintiffs or that relied on by the defendant; and if they had found in favor of the latter, then it was their duty to inquire further, whether the injury complained of resulted from plaintiffs’ failure to comply with the stipulations contained in the written contract or from the negligence of the defendant. I.f the finding had been with the defendant on that point, then it would not have been liable to this action, as we decided at the September term, 1884, of this court, in the case of The Central Railroad Co. vs. Bryantfor the use, etc.* As there must be a new trial on these grounds, it is unnecessary to consider other questions which depend upon the solution of this, and which, in a certain event, may never arise.

Judgment reversed.  