The proof shows that the _St. Louis & San Francisco Bailway Company, which received the carload of horses involved in this litigation, has through connection from Oswego, Kansas, to Montgomery, Alabama, connecting with the Kansas City, Memphis & Birmingham Bailroad Company at Birmingham, and that road had one with the defendant’s road at that point.
The plaintiff introduced and read in evidence, without objection on the part of defendant, a contract of affreightment, made by plaintiffs with the St. Louis & San Francisco Bailwav Company, to transport this car of stock from Oswego, Kansas, on its way to its destination — Montgomery, Alabama — to Nicholas Junction on the Kansas City & Memphis Bailroad, under which contract, as both sides seem to admit by their course of proceeding, said car came from its starting point to its destination at Montgomery ;- and the proof shows that the defendant receipted the Kansas City, Memphis & Birmingham Bailroad Company for said car at Birmingham. Under that contract, the defendant was relieved from its common law liability as a common carrier. The liability of the carrier under it is reduced to the lowest point the law allows — freedom from damages not *330arising from its own or its servants’ negligence. Beyond that measure it could not go, although it vainly attempted to do so, by stipulating that it should not be liable for loss or damage which did not result from the willful negligence of its agents. It was bound, notwithstanding such a stipulation, to exercise reasonable and proper care and foresight to avoid loss and injury to the property it transported.—South & North Ala. R. R. Co. v. Henlein, 52 Ala. 606; Cen. R. R. & B. Co. v. Smitha, 85 Ala. 47; Western Railway Co. v. Harwell, 91 Ala. 340.
Bestricted to the liabilities in this contract — limited by construction within legal bounds — the plaintiffs commenced this action, and claim under it for all that it allows. Under the complaint filed, however, it plays no part in the trial, further than to prescribe the degree of negligence to which the defendant may be held. It will be observed that, as the complaint in the cause is framed, the action is not predicated upon the absolute liability of the defendant as an insurer of the safe delivery of the stock, but proceeds upon the alleged negligence of the defendant in the transportation of the horses. Negligence is the gravamen of the action. The averment is, “that the defendant did, by its carelessness, negligence and default in the premises, injure the said stock.” Under such averments, the burden was on the plaintiffs to show that the injury occurred after the animals came into the possession of the defendant.—Western R. R. Co. v. Harwell, 91 Ala. 340; 11 So. Rep. 781.
The proof tended to show that the horses were received at Birmingham, and there delivered in good condition, to the defendant. If .the evidence of the plaintiffs’ witness, W. W. Brown, is to be believed, that fact would reasonably appear in the case. Besides, the defendant receipted for them, as being in “good order and condition.” If they were in good order and condition when delivered to defendant at Birmingham, and were in .very bad order and condition when they arrived at Montgomery, one of two conclusions is unquestionably true — either the evidence tending to show their good condition at Birmingham is a mistake, or, else, they were injured on the journey from that place to Montgomery. When the plaintiffs, assuming the burden, as they did by the terms of the complaint, made such a state of proof as we have, as to the condition in which the animals were delivered to the defendant, they made out a prima facie case against the defendant, on which they might have recovered, unless it, in turn, overcame that proof, and showed that the injury complained of was not done after, *331but before it received- the animals, and when tbey were in the custody of another company. To do tbis, it introduced as a witness tbe conductor who brought the car containing the stock with his train from Birmingham. He swears to a state of facts, making it not easy for one to see how damage could have occurred on the route. There is difficulty in arriving at a conclusion, how it was. The evidence is conflicting, and very strong on each side. Surely, then, it was a case for the jury, and not for the court, rendering it improper for the general charge, asked by the defendant, to have been given.
Affirmed.