(Dissenting.) — I do not concur in the construction placed on the special shipping contract by the majority opinion. The liability of the Southern Pacific Company for injury to the animals while such añimals were in the custody of the Arizona Eastern Railroad Company as a connecting carrier is determined from the special contract of shipment.
Without any doubt, the Arizona Eastern Railroad Company acted as the agent for the initial carrier, the Southern Pacific Company, in performing a number of obligations assumed by the Southern Pacific Company by such special contract. The special contract provides that, in case it becomes necessary to deliver the animals to the shipper at an intermediate point before the destination named in the contract is reached, such delivery may be made, after notice, and when notice is given delivery must be accepted by the shipper. The Arizona Eastern Railroad Company delivered the animals at Phoenix for the reason *518it was unable to deliver them at the destination named in the contract because of floods and destruction of its railroad between Phoenix and Buckeye, the destination named in the special contract. Thus the connecting carrier performed that condition of the special contract for and in behalf of the principal, the Southern Pacific Company.
The special contract provided that the shipper would be furnished transportation from the point of shipment to the destination named, in the contract and return to starting point for one person to accompany the animals in case the shipment comprised two carloads of animals. Two ears were shipped, and at Phoenix the Arizona Eastern Railroad Company changed the original contract naming the destination as Buckeye to read Phoenix, because of said floods, and issued to the shipper'a return ticket from Phoenix to Nogales, in strict conformance with the condition of the Southern Pacific’s special contract. The only theory upon which the said transportation could have been issued, entitling the holder to travel over the separate and connecting roads in return from the point of destination as finally established, Phoenix, to Nogales, the starting point, is that of performance of the original special carriage contract. The Arizona Eastern Railroad Company, in so performing such condition, certainly did so for and in behalf of the Southern Pacific Company, the contractor. The freight bills cover the charges for the entire distance from Nogales to Phoenix. The charge for such entire distance is $58 per car, and the additional sum of $1 per car advanced. These freight bills are issued by the Arizona Eastern Railroad Company, and the bill for each car bears notation that the car to which it relates was diverted to Phoenix because of the inability of the company to take shipment to destination.
*519The shipper paid said freight bills at Phoenix, as demanded. Can it be claimed that the Arizona Eastern Railroad Company was not the agent of the Southern Pacific Company for the purposes of demanding and collecting the freight charges for entire distance, including the service of the Southern Pacific Company? I think not. These circumstances, in my opinion, clearly permit of no inference other than that the Arizona Eastern Railroad Company acted as the agent of the Southern Pacific Company in the performance of the shipping contract; certainly it was the agent of the Southern Pacific Company in the performance of the conditions in the contract it is conclusively shown to have performed.
This being the case, what kind of a contract existed by which it carried the two cars of animals from Maricopa to Phoenix? I am of the opinion that such service was rendered at the instance of the Southern Pacific Company and by the Arizona Eastern Railroad Company as the agent of the Southern Pacific Company, and not as the party contracting with the shipper by an independent agreement; that the connecting line of the Arizona Eastern Railroad Company is the instrumentality used by the Southern Pacific Company with the use of which the Southern Pacific Company was able to and did perform its special contract. The power of the Southern Pacific to contract to ship the freight the entire distance provided for in the contract, including a shipment over connecting lines, is not disputed. Such is the law unless the charter of the corporation provides otherwise. Railroad Co. v. Pratt, 22 Wall. 126, 22 L. Ed. 827; Ohio & M. Ry. Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693 (see also, Rose’s U. S. Notes). •
But the contention is that the Southern Pacific Company is exempt from liability for damages occurring to the animals while they were in the care of the *520connecting carrier, and that the injury arising from any cause is conceded to have .occurred after the Arizona Eastern Bailroad Company took the shipment at Maricopa into its care. The special contract of shipment contains the stipulation relied upon as exempting from liability.-
The contract does not name an amount as a rate agreed upon, but-sets forth'that the shipper, “in consideration of a special rate which is thus attained, and of divers other good and sufficient considerations,” enters into the contract. The contract contains the stipulation as follows:
“It is hereby further understood and agreed by see- ' ond party that in case the livestock herein described be destined to any point off the railroad of the first party, or to a point beyond the destination to which the rate is named herein, all common carriers engaged in the_ transportation of said livestock to destination of _ said livestock shall have and enjoy the special privileges and exemptions herein accorded to first party, when the rate or rates charged by such common carrier or carriers conditioned on agreement limiting carriers’ liability: Provided, however, that the responsibility of first party, whether as common carrier or otherwise, shall cease and utterly determine upon arrival of said livestock at the station where the said livestock is to leave the road of the first party in the course of transportation to destination.: Provided, further, that Southern Pacific Company is not to be,” etc.
No connecting road is mentioned in the contract. There was no mention of compensation to any other party, and nothing was said of change to any other company on the way from Nogales to Buckeye.
I am content to understand from this stipulation that the liability of first party, whether as common carrier or otherwise, shall cease and utterly determine upon arrival of said livestock at the station where the livestock is to leave the road of the first party in course of transportation to destination whenever the *521contract provides that connecting carrier shall assume the duty of carrying the livestock to destination, by an agreement with the shipper. To a certainty, the liability of the initial carrier does not cease under the common law while the connecting carrier is engaged in the capacity of agent for the initial carrier in performing the special shipping contract. In order to avoid liability for any of the acts of its agent, such exemption from liability must be expressed in unequivocal terms. Mynard v. Syr., B. & N. Y. R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28.
It is well settled that a common carrier cannot by notice or special contract limit his liability so as to exonerate him from responsibility for his own negligence or misfeasance, or that of his servants and agents. The Pacific Deady, 17 Fed. Cas. No. 12,644; Philadelphia R. Co. v. Derby, 14 How. 486, 14 L. Ed. 502; York Co. v. Central R. R., 3 Wall. 107, 18 L. Ed. 170; Walker v. Transportation Co., 3 Wall. 150, 18 L. Ed. 172; Express Co. v. Kountze Bros., 8 Wall. 342, 19 L. Ed. 457; Railroad Co. v. Mfg. Co., 16 Wall. 318, 21 L. Ed. 297 (see also, Rose’s U. S. Notes); Steamboat New World v. King, 16 How. 469, 14 L. Ed. 1019; Mobile & O. R. R. Co. v. Hopkins, 41 Ala. 486, 94 Am. Dec. 607; Empire Transp. Co. v. Wamsutta Oil Co., 63 Pa. 14, 3 Am. Rep. 515; Knowlton v. Erie R. R. Co., 19 Ohio St. 260, 2 Am. Rep. 395; Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; Jones v. Voorhees, 10 Ohio, 145; Fillebrown v. G. T. Ry. Co., 55 Me. 462, 92 Am. Dec. 606; Sager v. Portsmouth, 31 Me. 228, 50 Am. Dec. 659; Michigan S. R. R. v. Heaton, 37 Ind. 448, 10 Am. Rep. 89; Ohio & M. R. R. Co. v. Shelby, 47 Ind. 471, 17 Am. Rep. 719; School Dist. etc. v. Boston R. R. Co., 102 Mass. 552, 3 Am. Rep. 502; Adams Express Co. v. Stettaners, 61 Ill. 184, 14 Am. Rep. 57; Nashville R. R. Co. v. Jackson, 6 Heisk. (Tenn.) 271; Ketchum v. American Exp. Co., 52 Mo. 390; New Orleans Mut. *522Ins. Co. v. New Orleans R. R. Co., 20 La. Ann. 302; Southern Exp. Co. v. Moon, 39 Miss. 822; Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Berry v. Cooper, 28 Ga. 543; Swindler v. Hilliard, 2 Rich. (S. C.) 286, 45 Am. Dec. 732; Flinn v. Philadelphia etc. R. R. Co., 1 Houst. (Del.) 469; Parsons v. Monteath, 13 Barb. (N. Y.) 363; Moore v. Evans, 14 Barb. (N. Y.) 524; Central R. & Bank. Co. v. Hasselkus, 91 Ga. 382, 44 Am. St. Rep. 37, 17 S. E. 838.
The general words of exemption used in this contract are “that the responsibility of first party, whether as carrier or otherwise, shall cease and utterly determine upon arrival of said livestock at the station where the said livestock is to leave the road of the first party in the course of transportation to destination.” This, of course, is whenever a connecting carrier has assumed to carry the shipment on its own responsibility under a contract with the shipper, expressed or implied. But, if the general words can be given effect without including negligence, the contract will not release from the negligence. Holsapple v. Rome, W. etc. R. R. Co., 86 N. Y. 275; Mynard v. Syr., B. & N. Y. R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28, supra. The leading cases upon the questions of the power of common carriers to limit their common-law liability as such carriers are Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455, and Cole v. Goodwin, 19 Wend. (N. Y.) 251, 32 Am. Dec. 470. The exhaustive notes annexed to such cases need no discussion.
The plaintiff claims that the mules were injured by the carelessness and negligence of the carrier, and the general words of the special contract relied upon by the Southern Pacific Company to exempt it from liability are broad enough to cover negligence of its servants and agents. Such stipulation is ineffective to exempt the carrier from liability for injury occur*523ring through the negligence of its servant or its agent, the connecting carrier.
I therefore dissent from the construction placed on the special shipping contract in evidence. I dissent from the force and effect given the contract. I do concur in the order reversing the judgment against the Southern Pacific Company. I do not concur in the order rendering a judgment in this court in favor of the Southern Pacific Company. I am of the opinion that the cause should be remanded, with instructions to the lower court to grant a new trial as the rights of the parties may appear. In no ease should the plaintiff be permitted to recover from the Southern Pacific Company the amount recovered from the Arizona Eastern Railroad Company if the said judgment is satisfied. Otherwise the plaintiff would be allowed a double recovery for injuries suffered from the negligence of the Southern Pacific Company through its agent, the Arizona Eastern Railroad Company. When the agent has satisfied the judgment for such injuries, the principal’s liability ceases.