dissenting.
I am unable to agree with the views expressed in the majority opinion. In the first paragraph of the syllabus it is held: “Where the bill of lading provides that as a condition precedent to the right to recover ‘damages 'for loss of or injury to’ live stock, the shipper shall give notice in writing of his claim therefor, notice is not required where the-claim is solely for damages sustained by the loss of a favorable market and for shrinkage in weight and expense of feeding at' destination while awaiting the next market, such damages being caused by reason of delay in transportation.” The views of the court as -expressed in the body of the opinion supports the syllabus. The provision in the bill of lading reads: “The said shipper further agrees that, as a condition precedent to his right to recover any damages for loss of, or injury to, any of said stock, he will give notice in writing of his claim therefor to some officer of said carriers, or to their nearest station agent, before said stock has been removed from said place of destination, and before such stock has been mingled with other stock, and present a formal statement of his claim duly verified to said carriers within 60 days thereafter.” It might be all right to hold that notice is not required where the claim is solely for damages sustained by the loss of a favorable market and expense of feeding at the destination, provided the same are caused by an unnecessary delay in transportation. The weight of the cattle immediately upon their arrival at their destination and before eating, drinking and filling to their usual condition, as nearly as may be, would not be their proper weight. The opinion testimony concerning what the cattle would shrink in two days further complicates the matter. There is no proper starting point shown by the evidence in the case. The testimony of the witnesses as to what might be the shrinkage of the cattle in two days gets noivhere. It is a projected view having no relation to the case and no *490connection with it. Undoubtedly there was shrinkage during the transportation of the cattle and it was that shrinkage to which the bill of lading refers, but the defendant company could not properly be held liable for that; and that is mixed with the estimated shrinkage of two days, as related by the opinion witnesses, and both kinds of shrinkage are together, that on the trip and that after the cattle arrived at the end of the trip, and therefore they are inseparable, and each by itself is unascertainable. This must have been prejudicial to the interests of the defendant at the time of the trial.
It is without doubt dangerous to the due administration of justice to make claims for damages because of other things than injury to the live stock shipped and then to consider the whole together. Besides no satisfactory reason is offered for not giving the notice. When the cattle arrived at their destination the shrinkage of the trip had occurred and it was then ready to be investigated. The notice should then have been'given before the accumulation of further acts to obscure the view of the subject. The weight of the cattle immediately upon their arrival at Chicago and before being fed or watered was 255,200 pounds, and when sold on Wednesday morning afterwards they weighed 256,410 pounds. The opinion witnesses were brought in to show that the weight of the cattle when sold was 6,465 pounds less than'it would have been if the cattle had been properly cared for and had been properly filled on arrival. The problem presented was incapable of exact demonstration, and no one may know that this testimony enabled the court to reach a correct result. It is conceded in the majority opinion that the case cited by the defendant railroad company, Underwood v. Chicago & N. W. R. Co., 100 Neb. 275, was right in that case “but is not strictly correct as a general rule.” I think it is preferable to look for a general rule. In that case the “fill” is claimed to have amounted on the average to 65 pounds to each steer, and in that case the weight of the cattle at the destination and “point of origin” was the *491same, and when tbe court saw there had been no shrinkage the opinion evidence that the cattle when held over one day wonld shrink 30 pounds to the head was held insufficient to support a finding of shrinkage in the face of competent evidence that there had been no shrinkage.