— Bailroads, as now operated, are relatively a new invention, and transportation upon them of cattle, or live-stock, is a still newer commercial appliance. In the very nature of things more than ordinary risks attend such shipments. The reasons for this increase of hazard or risk will naturally suggest themselves. So great is the liability of live-stock transported in cars, to be injured in the transit, that in some courts it is held that the common-law liability of carriers does not attach .to such service. Cooley, the distinguished constitutional lawyer (Torts, 641), says: “The common-law liability of a common carrier does not apply, in all respects, to railroad companies as carriers of live-stock.’ He is more or less supported in this view by the following adjudged cases, most, or all of them, from courts which rank among the highest: Smith v. N. H. & N. R. R. Co., 12 Allen, 531; Squire v. N. Y. Cen. R. R. Co., 98 Mass. 239; Penn v. Buf. & E. R. R. Co , 49 N. Y. 204; Clarke v. R. & Syr. R. R. Co., 14 N. Y. 570; Farnham v. Cam. & Amboy R. R. Co., 55 Penn. St. 53; Mich. S. & Ind. R. R. Co. v. McDonald, 21 Mich. 165; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; E. T., Va. & Ga. R. R. Co. v. Whittle, 27 Ga. 535; Kan. Pac. Railway Co. v. Nichols, 9 Kans. 235.
While we do not consider it necessary to announce any opinion on the general correctness of the proposition stated above, we think we may safely adopt the opinion of the New York Qourt of Appeals, that, “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 by foresight, vigilance and care.” — Penn. v. B. & E. R. R. Co., 49 N. Y. 204; Clarke v, R. & S. R. R. Co., 14 N. Y. 570; Mich. S. & Ind. R. R. Co. v. McDonald, *5121 Mich. 165; E. T., Va. & Ga. R. R. Co. v. Johnson, 65 Ala. 596.
It is settled in this State, and is generally, if not universally, conceded that, within certain limits, common carriers may by contract limit the extent of their liability. The limits are, that such contracts, to be legal, must be fair and reasonable, and that carriers can not contract for immunity against the consequences of their own negligence. — Steele v. Townsend, 37 Ala. 247.
By the terms of the contract of affreightment in this case, the shippers obtained reduced rates for the transportation of their live-stock, and also a passenger ticket for Smitha, one of the shippers and consignees. The contract was signed by both parties. The following are extracts from it: “In consideration of said railroad agreeing to transport the above described live-stock at the reduced rate of seventy dollars per car-load, and a free passage to the owner or his agent on the train with the stock, the said owner and shipper do hereby assume (and release the said railroad company from) all injury, loss and damage, or depreciation which the animals (or either of them) may suffer by consequence of either of them being weak, or escaping, or by injuring themselves or each other, or in consequence of overloading, heat, suffocation, fright, viciousness, or of being injured by fire, or the burning of any material while in the possession of the railroad; and from any other damages incidental to railroad transportation, which shall not have been caused by the fraud or gross negligence of said railroad. And it is further agreed, that said owner or shipper is to load, transfer and unload the said stock (with the assistance of the railroad’s agent or agents), at his or their own risk. And it is further-agreed that, in case of accidents, or delays in time from any cause whatever, the owner and shipper is to feed, water and take proper [care] of the stock at his own expense. And it is further agreed, that the railroad employees shall furnish the owner, or person in charge of the stock, all proper facilities on trains, and at stations, for taking care of the same.”
It needs no argument to prove that the parties, in making this contract, had it in contemplation, and so agreed, that the shipper or his agent would travel the entire route on the same train with his stock. The duties he undertook himself to perform, and from the performance of which he released the railroad, need not be repeated. They are expressed in the contract, copied above,
*52It is contended for the appellees, that the railroad, by furnishing to the shipper a passenger ticket at Atlanta, Georgia, changed the terms of the contract of affreightment, and remitted it to that of the general liability of common carriers; in other words, that the railroad thereby released the shippers from all duties and releases expressed in the written contract. We can not agree to this. We find no evidence of any intention to change or modify the contract first made. This case must stand or fall on the contract as expressed in the writing. And there is no injustice in this. The shippers secured reduced rates, in consideration of certain duties they undertook to perform, and certain releases they bound themselves to make. They secured the benefits, and must bear the burden.
In South & North Railroad Co. v. Henlein, 52 Ala. 606, a contract of affreightment was interpreted, which was not materially different from the present one. It was held to be reasonable and valid, in every respect save one. In that case, as in this, there was an attempt to secure the railroad’s exemption from all liability for damages, save those which might result from its fraud or gross negligence. We held that it was against public policy, and therefore illegal, to stipulate for immunity from the injurious effects of the railroad’s negligence, even though it might not be gross. We adhere to that opinion, and hold that the contract signed in this case is legal and valid, in every respect pertinent to this case, save the one we have been commenting on. — S. & N. R. R. Co. v. Henlein, 56 Ala. 368; Farnham v. Cam. & Amboy R. R. Co., 55 Penn. St. 53; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; E. T., Va. & Ga. R. R. Co. v. Whittle, 27 Ga. 535; Ala. Gr. So. R. R. Co. v. Thomas, 83 Ala. 343; Squire v. N. Y. Cen. R. R. Co., 98 Mass. 239.
It was the duty of Smitha, the shipper in this case, to accompany the car in which his horses were being transported, and to perform the services his contract required of him. That dpty was rendered all the more pressing, when he was informed in Macon that, by the road’s schedule and connections, the cars containing his horses would be sidetracked at Smithville, and remain there through the night. Any damage the stock suffered in the transit, by reason of the failure to receive the care and attention the shipper bound himself to bestow through the entire route, was his fault, and he must bear the loss.
Charges 2, 4, 5 and 6, asked by defendant, should each *53have been given, and the Circuit Court erred in not giving them.
Beversed and remanded.