*558ON MOTION POE EEHEAEING-.
Ellison, J.— Plaintiff seems to be impressed with, the idea that we have ruled that he is limited at another trial to the one question of negligence, viz.: That defendant did not afford him an opportunity during the delay of the horses to unload, feed and water them. There is no intimation in the opinion to justify such impression. We stated what is patent from the record, that by the instructions submitted by plaintiff, all of which were given, he abandoned all allegations of negligence except that defendant did not unload, feed and water the stock and did not afford plaintiff an opportunity to do so. This is all that plaintiff asked to be submitted to the jury’ at the trial. We have not undertaken to say what part of his allegations, if any, he will, or will not, abandon at a future trial.
We also ruled that since plaintiff, by special contract with defendant, agreed to load, unload, feed and water his stock, he should not incumber instructions with a statement as to defendant’s duty to do this. Defendant must, of course, afford plaintiff an opportunity to do so, by putting the car at the proper place at the proper time; but it, itself, was relieved of any obligation to unload, feed and water by the express terms of the contract. The case of Dun v. Railroad, 68 Mo. 268, instead of being opposed to this view as is insisted by plaintiff, supports it. See instruction 1, at page 270, and the court’s remarks, page 277, saying it was a fair exposition of the law. The remarks at page 279, as to the fifth instruction refused, in connection with the instruction itself and the authorities there cited are not as apt, perhaps, as they might have been. The authorities cited have no reference to defendant’s duty, notwithstanding exempted by contract to water and feed live stock. It is quite clear the statement of the *559learned judge was not intended to mean that which plaintiff now seeks to have it mean. That a common carrier may contract that the shipper shall accompany his live stock, unload, water and feed it, is well settled. Lawson on Carriers, sec. 175; Hutchinson on Carriers, sec. 322; Schouler on Carriers, sec. 479; see, also, 64 Mo. 440; 74 Mo. 163; 83 Mo. 580; 65 Mo. 629.
II. We did not consider the second instruction given as to the condition of the car for defendant for the reason that it was not a matter of complaint here, since plaintiff obtained judgment below. On retrial the rule of law in this regard, as announced in the cases of Potts v. Railroad, 17 Mo. App. 394; Brown v. Railroad, 18 Mo. App. 569; Mason v. Railroad, 25 Mo. App. 480, and Haynes v. Railroad, 54 Mo. App. 582, will govern as it may turn out to be applicable under the evidence.