It is unnecessary to consider whether the defendants were under any legal obligation to care for the horses while the car was being repaired. By assuming the care of them, it became their duty to do what the ordinary man would have done in that. situation, and it is no answer to this action to show that their undertaking was voluntary. Edwards v. Lamb, 69 N.H. 599. Reardon's knowledge in respect to the care given the horses was not the knowledge of the plaintiffs, for he was not their servant, but an independent contractor.
The contract was made, and the act of which the plaintiffs complain was done, in Indiana. The rights and liabilities of the parties. therefore depend on the law of that state. MacDonald v. Railway, 71 N.H. 448, 450. As that is understood, a contract by which a common carrier seeks to limit his common-law liability, to be valid, "must be fairly made upon a sufficient consideration, after the shipper has been given an opportunity to choose between the common-law right and rate, and the special contract rate and limited liability." Pittsburg etc. Ry. v. Mitchell, (Ind.)91 N.E. Rep. 735, 740; Cleveland etc. Ry. v. Hollowell, 172 Ind. 466; Ind. *Page 83 Acts 1905, c. 47, s. 2. In considering whether the shipper had such an opportunity, the question is not what the contract recites in respect to the matter, but whether he had in fact a chance to choose between his common-law right and the lower rate with limited liability. Lake Erie etc. R. R. v. Holland, 162 Ind. 406. It can be found that the plaintiffs had no such opportunity; for Kimball testified that the defendants would not accept the horses unless he signed a contract releasing them from liability as common carriers, and that their agent told him he must value the horses at $75 each.
Plaintiffs' exception sustained: judgment for the plaintiffs for $750.
All concurred.