The bill of lading signed by these parties was the contract between them, and that provides that defendant shall hot be liable for loss of hogs by jumping from the cars, and that they are to be taken care of by the owners, except it should be occasioned by a collision of trains, or when cars are thrown from the track in the course of transportation. The car from which the hogs fell or jumped, by reason of the door being opened, was a car of the Michigan Central railroad, selected by one of the plaintiffs, he refusing to use the cars of the defendant. If hogs escaped from these cars by reason of any defect in them, or of the door fastenings, the defendant would not be responsible if it did not know it when plaintiff selected them.
The 3d instruction given for plaintiffs was, therefore, erroneous. There is no proof, whatever, of gross negligence or carelessness in the management of this car.
The following instructions asked by the defendant should have been given—it was error to refuse them :
“ The court instructs the jury, that they must reject all hearsay evidence of the number of hogs delivered by Hall at Chicago. That it was Hall’s duty to count them himself, or have them counted by some person at Chicago, and if they were counted by any other person than Hall, then the evidence of the man who counted the hogs should have been given to the jury.
“If the jury believe, from the evidence, that it usually took 24 hours to get a car of hogs from Clinton to Chicago, and that the hogs in the declaration mentioned were started from Clinton in the evening of the different days, then they will not take into consideration the price of hogs in Chicago on the next day after such shipment, as the basis of their calculation of damages.
“ If the jury find from the evidence that plaintiffs sent for cars of the Michigan Central Railroad Company, in which to ship their hogs, then the plaintiffs take all the risk of damage their hogs might receive by reason of said cars being unsafe, or the doors thereof in bad order, and if the jury find from the evidence that some of plaintiffs’ hogs did get out of said Michigan Central cars, by reason of said cars being unsafe, or the doors thereof insecure, then they will find for the defendant on all counts claiming damage for hogs jumping from such cars.”
For the reasons given, the judgment is reversed and the cause remanded.
Judgment reversed.