heap up authorities on the subject. A common carrier is liable as an ordinary bailee for negligence; and he is liable for loss occasioned by negligence even though the act of God or of the queen's enemies conduce to the loss. But he is further liable, as an insurer, for losses which accrue through no negligence on his part. It is only necessary, therefore, to observe that an insurer is not liable for accidents happening through the inherent vice of the thing insured, but only for such as happen through adventitious causes. This is well explained in Smith's Mercantile Law, where it is said that underwriters are not liable for a loss which is necessarily incidental to the property rather than occasioned by adventitious causes, such as loss by worms or rats or the self-ignition of damaged hemp.'24 So in Brass v. Maitland,25 goods were delivered to a ship-owner to be carried, but were so packed as to conceal their real character, and in consequence of the insufficiency of the packages, other parts of the cargo were injured, and it was held by a majority of the court of queen's bench that an action lay against the shippers. That case was followed by Hutchinson v. Guion,26 and Hearne v. Garton,27 and the same law was laid down in Alston v. Herring, 28 with regard to goods causing corruption to themselves. The rule is very accurately laid down to the same effect in Story on Bailments,29 where the authorities are all collected. Sec. 338. (§ 220.) Same subject.-And in Kendall v. The Railway,30 decided immediately afterwards in the exchequer chamber, the case being that of a horse which in the course of the transportation was injured, Bramwell, B., stated the law as follows: "No doubt the horse was the immediate cause of its own injuries, i. e., no person got into the box and injured it. It slipped, or fell, or kicked, or plunged, or in some way hurt itself. If it did so from no cause other than its inherent propensities, its proper vice, that is from fright, or temper, or 24. Rohl v. Parr, 1 Esp. 444; Hunter v. Potts, 4 Camp. 203; Boyd v. Dubois, 3 id. 133. 25. 6 El. & B. 470. 26. 5 Com. B. (N. S.) 149. 27. 2 E. & E. 66. 30. L. R. 7 Exch. 373. struggling to keep its legs, the defendants are not liable. But if it so hurt itself from the defendant's negligence or any misfortune happening to the train, though not through any negligence of the defendants, as, for instance, from the horse-box leaving the line through some obstruction maliciously laid upon it, then the defendants, as insurers, would be liable. If perishable articles, say soft fruits, are damaged by their own weight and the inevitable shaking of the carriage, they are injured through their own intrinsic qualities. If through pressure of other goods carried with them or by an extraordinary shock or shaking, whether through negligence or not, the carrier is liable." Sec. 339. (§ 221.) Carrier liable as common carrier of animals except for losses caused by their peculiar nature.— These cases have been considered as establishing in the English law the principle, whatever doubts might have been previously cast upon the question by the opinions of learned judges, that the carriers of live animals incur the responsibilities of common carriers as to such freight; but that, at the same time, where an injury has happened to them, it is competent for the carrier to show that it occurred through the "proper vice" of the animal and not from any negligence on his part. And in this country, with greater unanimity, the duty and liability of the common carrier as to such freight have been defined with exactly the same limitations and exceptions.31 And it has been 31. In Kansas Pacific R. R. Co. v. Nichols, 9 Kan. 235, the court said: "That railroads are created common carriers of some kind, we believe, is the universal doctrine of all the courts. The main question is always whether they are common carriers of the particular thing then under consideration. The question in this case is whether they are common carriers of cattle. So far as our statutes are concerned no distinc tion is made between the carrying of cattle and that of any other kind of property. Under our statutes a railroad may as well be a common carrier of cattle as of goods, wares and merchandise or of any other kind of property. Now, as no distinction has been made by statute between the carrying of the different kinds of property, we would infer that railroads were created for the purpose of being common carriers said that the rule of the responsibility of the common carrier of goods must be applied to the transportation of this kind of property, modified as far only as may be necessary owing to cf all kinds of property which the wants or need of the public require to be carried, and which can be carried by railroads; and particularly we would infer that railroads were created for the purpose of being common carriers of cattle. As Kansas and all the surrounding states and territories, with their boundless prairies and nutritious grasses, are destined to be the great stock-growing countries, it can scarcely he supposed that the legislature, in providing common carriers for the property of the public, should have omitted to provide for one of the most important kinds of property, a vast source of unbounded wealth. We have no navigable streams within the boundaries of Kansas upon which to transport cattle, and hence they must be transported by railroad, if transported by any means except by driving them on foot. It is claimed, however, that 'the transportation of cattle and live stock by common carriers by land was unknown to the common law.' Suppose it was; what does that prove? "The transportation of thousands of other property, either by land or water, was unknown to the common law, and yet such kinds of property are now carried by common carriers and by railroads every day. We get our common law from England. It was brought over by our ancestors at the earliest settlement of this country. It dates back to the fourth year of the reign of James I., or 1607, when the first English settlement was founded in this country at Jamestown, Virginia. The body of the laws of England as they then existed now constitute our common law. It is so fixed by statute in this state (Comp. Laws, 678; Gen. Stat. 1127, § 3), and is generally so fixed by statute or by judicial decisions in the other states. The reason why cattle and live stock were not transported by land by common carriers at common law was, because no common carrier at the time our common law was founded had any convenient means for such transportation. Among the other kinds of property not transported by common carriers, either by land or water, at the time our common law was formed, are the following: Reapers, mowers, wheat drills, corn planters, cultivators, threshing machines, corn shellers, gypsum, guano, Indian corn, potatoes, tobacco, stoves, steam engines, sewing machines, washing machines, pianos, reed organs, fire and burglar proof safes, etc.; and yet no one would now contend that railroads are not common carriers of these kinds of articles. At common law the character of the carrier was never determined by the kind of property that he carried. He might have been a private or special carrier of goods, wares and merchandise, or of any other its peculiar character, and that the fact that the carriage of live stock was unknown when this rule of liability becomes fixed upon the carrier is answered by the consideration that kind of property, or he might law no person was a common carhave been a public or common carrier of cattle, live stock, or any other kind of property just as he chose. All personal property was subject to be carried by a common carrier, and no personal property was exempt. Whether a person was a common carrier depended wholly upon whether he held himself out to the world as such, and not upon the kind of property that he carried. "A common carrier was such as undertook 'generally' and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price." 2 Kent Com. 598. And he could hold himself out as a common carrier by engaging in the business generally, or by announcing or proclaiming it to the world by the issuing of cards, circulars, advertisements, etc., or by any other means that would let the public know that he intended to be a common or general carrier for the public. Railroads hold themselves out as common carriers by an act irrevocable on their part in their very creation and organization. The very nature of their business is such that by engaging in it, or offering to engage in it, they hold themselves out as common carriers. But let us return to the point more especially under consideration. At common rier of any article unless he chose to be, and unless he held himself out as such; and he was a common carrier of just such articles as he chose to be, and no others. If he held himself out as a common carrier of silks and laces, the common law would not compel him to be a common carrier of agricultural implements, such as plows, harrows, etc.; if he held himself out as a common carrier of confectionery and spices, the common law would not compel him to be a carrier of bacon, lard Funnel v. Pettiand molasses. And it john, 2 Harr. (Del.) 48. seems to us clear beyond all doubt, that if any person had, in England, prior to the year 1607, held himself out as a common carrier of cattle and live stock by land, the common law would have made him such. If so, where is the valid distinction that is attempted to be made between the carrying of live stock and the carrying of any other kind of personal property? common law never declared that certain kinds of property only could be carrier by common carriers, but it permitted all kinds of personal property to be so carried. At common law, any person could be a common carrier of all kinds, or kind, and just such kinds of personal property as he chose, no more nor less. Of course, it is well known that at the time when our common law The the law must keep pace with the march of improvement by applying the rules already established to the changed condition of things.32 mode, either by land or water, which probably includes all kinds of personal property. Our decision, then, upon this question is, that whenever a railroad company receive cattle or live stock to be transported over their road from one place to another, such company assume all the responsibilities of a common carrier except so far as such responsibilities may be modified by special contract." 32. United States: Hart v. Railroad Co., 112 U. S. 331. Alabama: South, etc., R. R. Co. v. Henlein, 52 Ala. 606; Railroad Co. v. Smith, 85 Ala. 47; Railroad Co. v. Smitha, Ala. 40 So. Rep. 117. had its origin, that is, prior to the year 1607, railroads had no existence. But when they came into existence, it must be admitted that they would be governed by the same rules, so far as applicable, which govern other carriers of property. Therefore, it must be admitted that railroads might be created for the purpose of carrying one kind of property only, or for carrying all kinds of property which can be carried by railroads, including cattle, live stock, etc. In this state it must be presumed that they were created for the purpose of carrying all kinds of personal property. It can hardly be supposed that they were created simply for the purpose of being carriers of such articles only as were carried by common carriers under the common law prior to the year 1607; for if such were the case, they would be carriers of but few of the innumerable articles that are now actually carried by railroad companies, and it can hardly be supposed that they were created for the mere purpose of taking the places of pack horses, or clumsy wagons, often drawn by oxen, or such other primitive means of carriage and transportation as were used in England prior to that year. Railroads are undoubtedly created for the pur- 8 Ill. App. 160; Express Co. v. pose of carrying all kinds of Bratton, 106 Ill. App. 563; Wabash property which the common law R. Co. v. Johnson, 114 Ill. App. would have permitted to be car- 545; Railroad v. Fox, 113 Ill. App. ried by common carriers in any 180. Arkansas: Fordyce v. McFlynn, 56 Ark. 424, 19 S. W. Rep. 961, citing Hutchinson on Carr. Colorado: Railway Co. v. Rainey, 19 Colo. 225, 34 Pac. Rep. 986. Georgia: Cooper v. Railroad Co., 110 Ga. 659, 36 S. E. Rep. 240; Railway Co. v. Hall, Ga. - 52 S. E. Rep. 679. Illinois: Ohio, etc., R. R. Co. v. Dunbar, 20 Ill. 623; T. W. & W. R. Co. v. Hamilton, 76 Ill 393; Toledo, etc, R. Co. v. Thompson, 71 Ill. 434; St. Louis, etc., R. R. . Dorman, 72 Ill. 504; Illinois Cent. R. R. v. Hall, 58 Ill. 409; Indianapolis, etc., R. Co. v. Jurey, |