[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 206 The liability of a common carrier of animals is essentially different from that of a carrier of merchandise or other inanimate property. While common carriers are insurers of inanimate property against all loss and damage except such as is inevitable or caused by public enemies, they are not insurers of animals against injuries arising from their nature and propensities, and which could not be prevented *Page 208 by foresight, vigilance and care. (Clarke v. Rochester andSyracuse R.R. Co., 14 N.Y., 570; Michigan S. and N.I.R.R. Co. v. McDonough, 21 Mich., 165; Angell on Carriers, § 214 a.) But for the special agreement under which the plaintiff's cattle were transported, there would be but little doubt as to the defendant's liability for the damages caused by the want of proper care while detained at Dunkirk. Ordinary care and attention to the cattle during the delay would have prevented the injury. The liability of the defendant is, however, to be determined by the agreement of the parties. The railroad company, by reason of the written contract, occupied the position of a private carrier for hire, and is only liable for the performance of the duty undertaken according to its terms, or for some wrongful act, either willful or negligent. The agreement furnishes the extent of liability, unless a loss has occurred from the willfulness or negligence of the carrier. (Farnham v.Camden and Amboy R.R. Co., 55 Penn. St. R., 53; Colton v.Cleveland and Pittsburgh R. Co., 67 id., 211; New Jersey St.Nav. Co. v. Merchants' Bank, 6 How. U.S.R., 344; Angell on Carriers, §§ 225, 226; Dorr v. N.J. St. Navigation Co., 1 Ker., 485.)
The plaintiff assumed all risks of injuries which the animals might receive "from delays, or in consequence of heat, suffocation or the ill effects of being crowded upon the cars," and also all risk of loss or damage in loading and unloading; and the agreement provided that the plaintiff should load and unload the stock at his own risk, the defendant furnishing assistance as required. By another clause in the agreement, an agent of the owner was to ride free, and to be with the train to take the care and charge of the stock, and D.W. Barron is named as passed free in charge of the stock. The case states that it was proved on the trial "that the said cattle were in the charge of D.W. Barron as the agent of the plaintiff, and he accompanied them on the cars from Kentucky to Buffalo."
The provision in the contract for loading and unloading the cattle had respect to the terminus of the transportation, and *Page 209 not for loading and unloading at any intermediate station. There is no claim that the detention at Dunkirk was occasioned by the willful or negligent conduct of the defendant or its servants, or that the cattle were not carried to their destination as soon as they could have been, with reasonable diligence. The loss resulted from the delay, and in consequence of "heat and suffocation and being crowded upon the cars." The loss was within the terms of the contract and to be sustained and borne by the plaintiff, unless caused by the willful act or neglect of the defendant.
The cattle were in charge and under the care of the plaintiff's servant and agent. No duty was devolved upon the defendant other than to transport them in a proper car, safely and with reasonable dispatch. The carrier did not undertake to look after the cattle or care for them, to water or feed them, or to guard against any of the necessary consequences resulting from delays or detention on the route. Whatever was required to be done to prevent injuries and loss arising from such causes was to be done by the owner or his servant in charge of the cattle. The agent of the plaintiff testified that he could have arranged planks and taken the cattle from the cars, and thus prevented the injury, and did not because it was not his business. Had he undertaken to remove the cattle from the cars and been prevented by the defendant or its servants and agents, and loss had ensued, the defendant would have been liable. The recovery was had upon the ground that it was the duty of the defendant's agents, upon request of the plaintiff's agent, to have unloaded the cattle at Dunkirk, if it could have been done by the exercise of reasonable care and diligence, and the jury were instructed to this effect. This was placing the responsibility of the care of the cattle upon the carrier instead of the owner. If, as the case shows, the cattle were in charge of and under the care of the servant and agent of the owner, the defendant was not chargeable for neglect of duty in not unloading them or taking any other care of them necessary for the prevention of injury or loss. The duty of the defendant had respect to *Page 210 the transportation of the cattle, and not the care of them whilein transitu.
Again, this case falls within the general principle that he who seeks to recover damages which have resulted from the negligence of another, must himself be free from negligence contributing to the injury. The plaintiff's agent in charge of the cattle could have prevented all loss by himself removing the cattle, and his omission to do so, under the circumstances, was a negligent omission of duty, directly contributing to the injury. If the agent of the owner had not been with the cattle to take care of them, the duty would have been upon the defendant to do what was necessary to guard against loss and damage during the detention; that is, to use proper diligence and care in looking after the cattle. (Clark v. Rochester and Sy. R.R. Co., supra; Hamilton v. McPherson, 28 N.Y., 72.)
The direct cause of the injury was the want of proper care of the cattle at Dunkirk, and is upon the evidence attributable to the plaintiff's agent. If there was any obstacle interposed by the defendant to the unloading of the cattle, it should have been shown.
The judgment must be reversed and a new trial granted.
CHURCH, Ch. J., FOLGER and RAPALLO, JJ., concur. GROVER, J., concurs in the result, upon the ground that the exception to the refusal of the judge to charge as requested, as to the duty of the person in charge of the stock to unload them, was well taken.
PECKHAM, J., dissents.
Judgment reversed. *Page 211