On Petition for Rehearing.
Myers, J.2.
A very able brief has been filed by the learned counsel for appellant, on the petition for a rehearing, in which he calls attention to one oversight in the original opinion, to the point that §15 as amended in 1910 (U. S. Comp. Stat. Supp. 1911 p. 1297) could not apply in this case, nor was the clause in that section in regard to the shipper routing the shipment, in form or substance in the law as it existed when this action arose. In that particular counsel are correct and in that, the opinion is modified. The error arose from our use of the Compiled Statutes in which the dates of the various amendments are somewhat obscured by the manner of the compilation. It was not however material in the case, as it had been then decided by the Supreme Court of the United States, though the case had not then fallen under our notice, that, under the act of 1906, where an interstate shipment is accepted to be transported over a route selected *107by the shipper, which was different from the one the carrier would otherwise have selected, and one as to which the carrier had no established through rate, the primary liability is the same as in case of an established route and rate, and does not offend against the due process of law clause of the Federal Constitution. The case goes farther than our opinion. Norfolk, etc., R. Co. v. Dixie Tobacco Co. (1913), 228 U. S. 593, 33 Sup. Ct. 609, 57 L. Ed. 980.
14.
There are 140 typewritten pages of the evidence in the record. In appellant’s brief this is condensed into 2J pages of printed matter, with reference to the page and line of the record where the claim is made that the evidence may be found to sustain the claim of appellant as to what the evidence shows, and the so-called recital of the evidence discloses the conclusions of appellant as to what the evidence “shows”, not what the evidence is. The recital by appellant is not supplemented by appellees’ brief so as to present the actual evidence, and the rule is not complied with in appellant’s brief. "We have, however, in view of appellant’s urgency and the importance of the questions, reviewed the instructions and, taking the most favorable view of appellant’s recital as to what the evidence shows, we are convinced that the questions presented by the refused instructions are fully and fairly covered hy the instructions given, and that none of those given were erroneous.
The difficulty in appellant’s claim, and the matter that seems to have been entirely overlooked is, that the contract was practically taken out of the case, as well as the requested instructions, by the evidence of appellant’s agent, that if shipment had been requested under any other contract, it could only have been by using the same form, but it would have been so modified that it would have required shipment at the “consignee’s risk” (our italics) and that there was “no prescribed form for all shipments”. This evidence is fatal to appellant’s claim.
*108With, the modifications indicated, the petition for rehearing is overruled.
Note.- — Reported in 102 N. E. 34; 103 N. E. 839. See, also, under (1) 31 Cyc. 358; (2) 6 Cyc. Anno. 492; (3) 8 Cyc. 798, (4) 6 Cyc. Anno. 480; (5) 6 Cyc. 377; (6) 3 Cyc. 303; (7) 38 Cyc. 1711; (9) 2 Cyc. 700; (10) 6 Cyc. 439; (12) 38 Cyc. 1378; (13) 6 Cyc. 392; (14) 2 Cyc. 1013. As to the general question of liability of connecting carrier for loss beyond its own line, see 31 L. R. A. (N. S.) 1. As to the validity and effect of a contract stipulation limiting the time to present a claim against a carrier of live stock, see 9 Ann. Cas. 17; 14 Ann. Cas. 416. As to the validity and construction of the federal twenty-eight-hour law, see 21 Ann. Cas. 823.