the carrier stands to such freight is of more importance than might at first be imagined, as if he is to be treated in its transportation as a common carrier, he becomes an insurer, as in the case of other goods, against loss from every cause except the acts of God or of the public enemy or of the animals themselves, unless he has further protected himself by his contract, and in case of loss of or injury to the freight, the burden of proving Const. Co., 44 Wis. 405. This Hutchinson on Carr. In Richard- Wis. 511; Morrison v. P. & C. son v. Railway Co., 61 Wis. 596, Cassoday, J., says: "Whether a railway company is under the same obligations to furnish cars for, and receive, safely carry, and store live stock as other ordinary inanimate freight, is a question upon which much has been writ ten, and some diversity of opinion has been expressed. It is not necessary here to analyze the adjudged cases, nor indicate the weight of reason or authority. "Betts v. Farmers' L. & T. Co., 21 Wis. 80, was an action for injuries caused by the carrier's negligence in carrying the plaintiff's cattle in a car with defective and imperfectly fastened doors which were thrown open by the motion of the cars so that the cattle escaped. The cattle were shipped under a special contract, which, among other things, provided that the company should 'not be liable for loss in jumping from the cars.' In that case, Dixon, C. J., giving the opinion of the court, said: 'As to this species of property we think it competent for the carrier to contract that the owner shall assume all risk of damage or injury, from whatsoever cause happening in the course of transportation.' See, also, C. & N. W. R. Co. v. Van Dresar, 22 To them others may M'Cance v. London & N. W. R'y Co., 7 Hurl. & N. 477; Gannell v. Ford, 5 Law T. Rep. (N. S.) 604; Robinson v. G. W. R'y Co., 35 L. J. C. P. 123; Harrison v. London, B. & S. R'y Co., 2 Best & S. 122; Manchester S. & L. R'y Co. v. Brown, 50 Law T. Rep. (N. S.) 281. But there are cases even in England which seem to hold a contrary doctrine. M'Manus v. Lancashire & Y. R'y Co., 4 Hurl. & N. 327; Allday v. G. W. R'y Co., 5 Best & S. 903; Gregory v. W. M. R'y Co., 2 Hurl. & C. (Exch.) 944; Rooth v. North Eastern R'y Co., L. R. 2 Exch. 173; Doolan v. Directors of M. R'y Co., L. R. 2 App. Cas. 792; Moore v. G. S. & W. R'y Co., L. R. 10 Ir. Com. Law, 65. Just how far the cases cited were controlled by the presence or absence of losal statutes it is not necessary here to determine. "It is well settled that a carrier of ordinary inanimate freight cannot by any agreement, however plain and explicit, wholly relieve that it arose from its own fault rests upon him if he would excuse himself upon that ground. Whereas if he is to be considered merely as the paid agent of the owner for the transportation of his stock, his liability would rest solely upon the question of negligence, the burden of proving which would be upon the owner of the freight; and this has been the contention in many of the cases in which he has been held liable as a common carrier. mals. "This broad distinction between that class of freightage and ordinary inanimate freight has frequently been observed by the courts. itself from all liability whatsoever transportation of such live aniresulting from its own negligence. Black v. Goodrich Transp. Co. 55 Wis. 319. Just the extent that a carrier of such inanimate freight may by express contract exempt itself from liability for its own negligence need not here be determined. Certainly, there is a broad distinction between the risk incident to the carriage of such ordinary inanimate freight and that of live animals having instincts, habits, propensities, wants, necessities and powers of locomotion. Requisite care in case of the transportation of such live stock, therefore, necessarily implies food and water periodically, and at times especial care and shelter outside of the vehicle of carriage. All these things would require help, appliances, conveniences and extra arrangements not requisite in the case of ordinary inanimate freight, which a carrier might be unable or unwilling to furnish; and yet, if furnished by the owner of such live stock, and the risk incident to them assumed by such owner, the carrier might be able and wiling to undertake such transportation. And yet, with all reasonable care, it would be impossible to secure at all times absolute safety in the Blower v. G. W. R'y Co., L. R. 7 C. P. 655; Shir. Lead. Cas. No. 22, p. 50; Clarke v. R. & S. R'y Co., 14 N. Y. 570; Penn. v. B. & E. R'y Co., 49 N. Y. 204; Cragin v N. Y. C. R. R. Co., 51 N. Y. 61; Holsapple v. R., W. & O. R. R. Co., 3 Am. & Eng. R'y Cas. 487; Smith v. N. H. & N. R. R. Co., 12 Allen, 531; Evans v. Fitchburg R. R. Co., 111 Mass. 142; Michigan S. & N. Ind. R. R. Co. v. McDonough, 21 Mich. 189; Lake Shore & M. S. R. R. Co. r. Perkins, 25 Mich. 329. There would certainly seem to be no good reason why a carrier might not by express contract exempt itself from damage caused wholly, or, perhaps, in part, by the instincts, habits, propensities, wants, necessities, vices or locomotion of such animals. Ibid. As to injury from such causes the common-law liability and obligation do not seem to attach; certainly not with the same rigidity as they do in ordinary inanimate freight. Ibid. Thus, in a late case in Minnesota it is held that 'a railroad corporation which Sec. 342. Though injury caused by peculiar nature of the animals, carrier not excused if he has been negligent. -But while it is always competent for the carrier to show in his defense that the injury resulted from the peculiar nature or inherent vices of the animals themselves and thus excuse himself from liability, if it appear that he has been guilty of any negligence and that such negligence contributed to the injury, the excuse can no longer avail him.1 It is his duty to exercise at all times ordinary care in guarding the stock against such injuries as are likely to result from their natural propensities and which, in view of the character of the animals, can reasonably be foreseen and provided against; and for a failure. to do so whereby the animals cause themselves injury, he will be liable. Thus in the case of Loeser . The Railway Company,2 it appeared that the defendant's servants unloaded a number of horses from the car in which they were being transported and undertakes to transport live stock for hire for such persons as choose to employ it assumes the relation of a common carrier with such modifications of the common-law liability of carriers as arise from the nature of the animals and their capacity for inflicting injury upon themselves and upon each other.' Moulton v. St. P., M. & M. R'y Co., 12 Am. & Eng. R'y Cas. 13. To these things may well be added other things incident to live stock." 1. Giblin v. Steamship Co., 8 Misc. Rep. 22, 28 N. Y. Supp. 69. If, during transit, the carrier negligently exposes cattle to the cold weather prevailing at that season of the year and they are damaged, he will be liable. Rail road Co. v. Smissen, 31 Tex. Civ. App. 549, 73 S. W. Rep. 42. That a horse becomes frightened, breaks its bridle and runs away, is not sufficient to charge the carrier with a failure to exercise proper care. Kaplan v. Railroad Co., 88 N. Y. Supp. 945. Where a carrier negligently sent forward a dog by an earlier train than it should have done, and there being no one at destination to receive it, shipped it back again, and the owner on its return directed that it be reshipped, it was held by a divided court that the death of the dog through an overstrained bladder due to its long confinement had, as its proximate cause, the failure of the owner to properly attend it before its reshipment, and that the carrier was not liable for its loss. Harrison v. Weir, 75 N. Y. Supp. 909, 71 App. Div. 248, s. c. 73 N. Y. Supp. 1119, reversing 69 N. Y. Supp. 957, 34 Misc. Rep. 519. 2. 94 Wis. 571, 69 N. W. Rep. 372. drove them in a group into a yard, where they were to be tied. Before all of the horses were tied, two of the number began to kick and one of them, by its own act of kicking, dislocated its leg at the hock, necessitating its being killed. The jury found that the manner of driving the horses loosely in a body instead of separately was, under the circumstances, a negligent act, and returned a verdict against the defendant. On appeal, judgment on the verdict was affirmed, the court saying that ordinary care might well have required in such a case that vigilance be used to guard against and restrain the natural propensities of the animals to cause themselves injury. Sec. 343. Duty of shipper to disclose peculiarities affecting risk. It is clearly the duty of the shipper to disclose, if requested, any peculiarities or infirmities in the animals, known to him and not to the carrier, which would increase the risk of carriage in the usual manner or require greater precautions for their safety than those usually requisite ;3 and so, without request, it would be the duty of the shipper to disclose such peculiarities or infirmities not known to the carrier and not discernible from the appearance or condition of the animal; and the carrier would not be liable, in the absence of such a disclosure, where, having used the care and diligence usually requisite, an injury was sustained proximately owing to such peculiarity or infirmity. But a failure so to disclose would not relieve the carrier for a loss proximately caused by his own negligence, nor could he complain of the failure to disclose a condition of things evident from the appearance of the animal itself. VIII. EXCEPTIONS MADE BY STATUTE. Sec. 344. (§ 224.) Statutes limiting carrier's liability.Besides the exceptions which are allowed by the common law to the liability of the carrier for loss of the goods, or the injury which may have happened to them whilst in this custody, statutory enactments have been made, both in this country and in England, which have greatly modified as to certain classes of car3. See ante, § 329. 4. See ante, § 330. riers the rigorous liability which was imposed upon them by the rules of the common law. The English Land Carriers' Act, which will be more particularly referred to in the chapter upon the subject of the limitation of the carrier's liability by contract, and which, as its title indicates, is confined to carriers by land, was designed to protect all such carriers from imposition, and from losses for which they could not fairly be held liable on account of the failure of their employer to disclose the value of packages intrusted to them, as well as to promote a system of fair dealing between the carrier and the public; and with respect to the owners of sea-going vessels as carriers, besides the exceptions always contained in their bills of lading, their common-law liability is greatly narrowed by acts of parliament protecting them against liability for losses by fire; from the obligation to make good losses of gold, silver, diamonds, watches, jewels or precious stones by robbery or embezzlement, unless the owner has at the time of the shipment declared the value thereof; from making good any losses incurred by the misconduct of the master and mariners without their privity, or by robbery, by whomsoever committed, to a greater extent than the value of the ship and freight; and to all other cases of loss occasioned without their default or privity. And a similar law has been enacted by the congress of the United States, under its constitutional power to regulate commerce, for the protection of the owners of all vessels employed as common carriers. Sec. 345. Policy of United States courts towards carriers by water changed by Harter Act.-On February 13, 5. English notes to Coggs v. Bernard, 1 Smith's Ld. Cases, 368, 369. 6. The above laws of the congress of the United States for the protection and to limit the liability of the owners of vessels as common carriers are to be found in the Revised Statutes from sec. 4281 to 4289 inclusive, and are as follows: Sec. 4281. If any shipper of platina, gold, gold dust, silver, bullion or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, or any gold or silver in a manufactured or an unmanufactured state, watches, clocks or time-pieces of any description, trinkets, orders, notes or securities for the payment of |