— I. We do not deejn it necessary, in this"case, to determine as to the correctness of the first conclusion of law of the referee.
1 common oartoansportattrax oí stock. If it should be conceded that, in the absence of any contract, receipt or regulation, the full 'liabilities of common carriers n0<; exist with respect to railroads, when engaged ^ie transportation of live stock, there is, notwithstanding, no principle of law, which, in the absence of contract, exonerates them, when engaged in such employment, from the exercise of ordinary care.
*1322.-: eonpactum.u 11111 II. The regulations for the transportation of live stock, attached to the contract signed by plaintiff and defendant, tod constituting a part of it, provide that stock will only be taken by the car load, when a contract is executed by the special agent and shipper. Plaintiff’ had before shipped upon defendant’s road, and knew of these regulations. He had, therefore, a right to expect that none of his cars of cattle would be forwarded until the shipping contract was signed, and further, as he intended to accompany them, that they would all be shipped in one train, or in such manner that he could have an agent in charge of each lot. The four cars were in fact shipped whilst he was engaged in loading some of the cars, before the contract was signed, and without any notice to plaintiff. He had no opportunity to send anyone in charge of these cars to take care 5f the cattle. The company did not have any one in charge of the cattle in these four cars.
The referee has found as a fact that the plaintiff was prevented from accompanying the cars by the negligence of defendant, and that, the plaintiff being prevented from having any one in charge of said four cars, the defendant did not exercise ordinary care in their transportation. This finding is abundantly sustained by the evidence.
The defendant then must be held liable for the injury resulting, unless exonerated by the shipping contract executed by the parties. We do not deem it necessary here to determine whether this contract is valid under the provisions of Chap. 113, Acts of the 11th General Assembly.
From the whole tenor of this contract, it is apparent that the stipulation that the owner is to assume all risk of injury, or damage that the animals shall do to themselves or to each other, is upon the consideration that the owner or driver shall be permitted to pass on the train with the stock to take care of it.
At the time this contract was signed the four cars in question were on their way to Chicago, with no. one in charge of them.
The condition which became the consideration of the agreement was, therefore, impossible.
*133Tlie agreement that the company should not be liable for any injuries to the cattle, was, so far as these four cars are concerned, a mere nu&um pactum, and did not exonerate defendant from the necessity of exercising at least ordinary'care.
We conclude, therefore, that the judgment of the court below is right, and should be
Affirmed.