(after stating the facts.) “In the absence of a contract limiting the liability of a common carrier, he is liable for all losses except those caused by the act of God, by the public enemy, by the inherent defects, quality or vice of the thing carried, by the seizure of goods or chattels in his hands under legal process, or by some act or omission of the owner of the goods. He may, however, contract for exemption from liability for injuries occurring from unavoidable accidents, but not for exemption from liability for losses occurring from the negligence of himself or his servants, or any exemption not just and reasonable in the eye of the law.” Little Rock, M. R. & T. Ry. v. Talbot, 47 Ark. 103.
The liability of a carrier for losses caused by unavoidable accidents, from which he is exempt by stipulation, is the same as his liability for losses occasioned by the act of Gód. “It is universally .agreed that, if the damage is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the act. of God, or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage.” 1 Shearman & Redfield on Negligence (5 Ed.), § 39 and cases cited. In Wolf v. American Express Company, 43 Mo. 421, it is said: “The act of God which excuses the carrier must not only be the proxim'ate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause, he is still responsible.” Many authorities hold that where the unnecessary delay of a carrier in the transportation subjects goods in his possession to a loss by an act of God, which they would not otherwise have sustained, the delay is such negligence as will make him liable for the loss. Wald v. Pittsburg, C. C. & St. L. R. Co., 162 Ill. 545, and 35 L. R. A. 356, and cases cited; 1 Hutchinson on Carriers (3 Ed.), § § 301-305. It is the duty of a carrier to care for and protect property in his care against loss and injury. He can not fold his arms, “and, because it is subjected to causes that may work its destruction for which he is not responsible, make no effort to save or protect it from such causes or agencies, and then claim to be exempted from liability.”
There are cases which hold that a' carrier is not liable where his unnecessary delay subjects goods in his care to a loss by an act of God. They do so upon the ground that the delay is not the proximate cause of the injury. 1 Hutchinson on Carriers, (3 Ed.), § § 297-300, and cases cited. But we think the other opinion is the better doctrine and more calculated to secure the enforcement of the duties of carriers and- the protection of shippers; and for the reason upon which it is based is, as already stated, applicable and governs in cases like the case at bar.
The railroad company did not have the custody or control of the cotton in controversy in St. Louis, I. M. & S. R. Co. v. Commercial Union Insurance Company, 139 U. S. 223; Martin v. Railway Company, 55 Ark. 510, and Railway Company v. Neel, 56 Ark. 279, cited .by appellant, and was not responsible for its care and protection.
In James v. James, 58 Ark. 157, also cited by appellant, the plaintiff did “not seek recovery upon the ground that the bailee for hire did not use ordinary care in the preservation of the cotton, or that he negligently destroyed it.” It was unlike the case at bar, and did not present the same question.
In this case appellant was exempted from losses by fire on condition that it exercised ordinary care and diligence in the protection of the lumber intrusted to its care and in its transportation; and it was its duty to do so. For two days the cars of lumber were allowed to remain on the side tracks near a mill, exposed to any fire that might originate there. For two days trains were passing and the cars were not removed. The necessity of protection to the cars of lumber against fire, on account of -their proximity to the mill, could have been reasonably foreseen. The court, sitting as a jury, found that the appellant was guilty of negligence, and the evidence sustained the finding.
Judgment affirmed.