The petition alleges, in substance: That in March, 1900, plaintiff delivered to defendant, a common carrier, at St. Paul, Minn., a carload of cattle in good condition, to be transported to Lansing, this state; that defendant failed in its duty as a common carrier, and in its contract obligations to plaintiff, in that from the time of the undertaking to transport said cattle it failed to exercise the diligence required - by law to protect the same from injury by exposure and' freezing, and so that, when Lansing was reached, several of the cattle were found frozen to death, and the others were -more or less injured from the exposure and freezing; that at all times defendant had notice and knowledge respecting the condition of the cattle, and the injuries being inflicted thereto, notwithstanding which it took no steps to relieve the same from the danger to which "they wéré exposed. It is specifically alleged that after receipt of the cattle at St. Paul, the defendant transported the car tp Newport, a station a few miles distant, where the car was left “standing on a side track, in an unsheltered and exposed position, for a period of several hours, and until said cattle became badly frozen;” that this was against the protest of plaintiff, and against his demand “that said stock be removed from where they were so left, within a reasonable time, and *178forwarded, to their destination, or unloaded and placed in proper shelter.” Defendant denied the negligence specifically charged; denied that the conditions were such as to make it necessary to unload the cattle or treat them otherwise than it did; alleged that the car was forwarded by the first regular train leaving Newport, and carried forward without unnecessary delay. It also denied that the cattle were frozen or injuriously affected by the weather while they stood upon the side track or at any other time while in defendant’s possession, “and denied that plaintiff has been damaged by any fault or negligence or breach of duty on its part.”
In order to make out his case under these issues plaintiff introduced testimony to show that the cattle were in good condition when loaded in the car; that the loading was completed by seven o’clock in the evening, when the car was taken by a switch engine to Newport, where it was placed upon a side track and allowed to remain for about four hours before being started on its journey south. As a witness, plaintiff further says that he accompanied the car from the start; that the night was clear and cold, and that it grew colder as it advanced, that the country west and north of Newport is open and flat and of lower elevation than the station, and that a hard wind was blowing from the northwest; that the cattle were severely chilled during the long wait on the side track, and that he tried in vain to find assistance in giving them protection, but there was no one at the station save the telegraph operator, to whom he appealed, who failed to take any steps to alleviate the condition of distress. He further testified — and without dispute — that live stock loaded in a car suffer more severely from wind and cold when the car is at a standstill than when moving. Also, that as the train in question proceeded south, moderated temperature was experienced. There was, also, evidence respect*179ing the condition of the cattle when delivered at,the place of destination.
Defendant offered in evidence a written contract, under which the shipment was made and in such contract these provisions, among others, appear: That the company shall not be liable for injury arising from delay in transportation; and that the owner in charge of stock shall bear all expense of feeding and watering during transportation. Evidence was also introduced respecting the weather conditions at the time, as to ’ the conduct of the train from Newport south, and as to the condition of the cattle when delivered. The testimony for defendant tended to show that the damages to plaintiff’s stock could not have been due to weather conditions, or to the conduct of the, train from Newport southward on defendant’s line.
The trial court, in view of this testimony and the issues tendered by the pleadings, gave the following, among other, instructions:
If there was delay in the transportation of the cattle, the defendant was required to use the highest degree of care during the delay for their safety. If the removal of the cattle from the car during, the time of the delay,' or at any time while in the defendant’s possession, was necessary for their protection from injury, and it was possible to remove them, defendant was bound ".to do so, and was bound to give them whatever personal attention was necessary for their protection, during the whole time the cattle were in possession of defendant. When the defendant contracted to carry the cattle to their destination, the law imposed upon it an obligation to carry them in a proper manner, and deliver them in good condition, considering the ordinary perils of the road; and if it failed to deliver them in such condition,- it is responsible in damages for such failure, unless it can excuse itself by showing that the damage was caused by some condition beyond its power to know of and to prevent.
These instructions are challenged by defendant for *180the reason that they imposed upon defendant the highest degree of care known to the law, whereas, under the facts disclosed by the record, nothing more than ordinary care was required. It must be borne in mind that there was no negligent delay in the shipment of the cattle. ' They were taken on defendant’s first regular train leaving Newport after their arrival at that point, and it is not claimed that defendant’s train schedules were inadequate, or that the animals should have gone forward from Newport at an earlier hour than they did. It is defendant’s treatment of the cattle while at Newport, awaiting the arrival of a south-bound train, which is relied upon as a ground for recovery. Plaintiff says that defendant was negligent in its care of the cattle at this point, while defendant denies it. The trial court instructed that defendant’s duty was to exercise the highest degree of care in the safety of the cattle, and that it could not excuse itself, except by showing that the damage was caused by some conditions which were beyond its power to know of and prevent. As already observed, this is not a case where the carrier is charged with delay in the shipment of the stock; nor is plaintiff relying upon the presumptions arising where one shows the delivery of property in good condition to a carrier and a redelivery by the carrier to the shipper of the goods in a damaged condition. Here plaintiff pleaded and attempted to prove defendant’s negligent treatment of the cattle while at Newport, and the degree of care which the law imposed upon it in caring for the stock during the delay was an incident of the shipment. In this connection it must be remembered that plaintiff accompanied his stock, was with them at Newport, and, as he says, notified defendant’s employees of the dangers incident to the change in climatic conditions.
*181I. Railroads: shipment of live stock: degree of care requiredinstruction. ‘ *180As we understand it, the degree of care required of a carrier under such circumstances is not the highest, but ordinary and reasonable care, such care as an ordinarily *181careful person would exercise under the same or similar circumstances. See,, as supporting this rule, German v. R. R. Co., 38 Iowa, 127; Beard v. R. R. Co., 79 Iowa, 518; Peterson v. Ry. Co. 19 S. D. 122 (102 N. W. 595); McGraw v. R. R. Co., 18 W. Va. 361 (41 Am. Rep. 696); Truax v. Philadelphia R. R. Co., 3 Houst. (Del.) 233; Peck v. Weeks, 34 Conn. 145; Chapin v. R. R. Co., 79 Iowa, 582. It is generally held that where goods ,of a perishable nature are injured or practically destroyed by a sudden and unexpected freeze, or from other cause of a like nature, the carrier is not liable in the absence of a showing of negligence on its part. If the transportation is being carried on at a season of the year and in a locality where a freezing spell is, in the nature of things, prohable, the carrier will be held liable for loss or injury to perishable goods caused by their being frozen only when common prudence would have required it to anticipate such Aveather conditions as were probable, and to provide against them by sheltering the goods. Ordinary care and prudence upon its part is all that is required. 'See, as supporting this view, Vail v. Pacific R. R. Co., 63 Mo. 230; Swetland v. Boston R. R. Co., 102 Mass. 276; American Express Co. v. Smith, 33 Ohio St. 511 (31 Am. Rep. 561); Nashville R. R. Co. v. David, 6 Heisk. (Tenn.) 261 (19 Am. Rep. 594). See also: Chicago R. R. v. Woodward, 164 Ind. 360 (72 N. E. 558, 73 N. E. 810); Black v. C., B. & Q. R. R., 30 Neb. 197 (46 N. W. 428); Ill. Gent. R. R. v. Holt (Ky.) 92 S. W. 540; Maslin v. B. & O. R. R., 14 W. Va. 180 (35 Am. Rep. 748); Nashville R. R. v. Jackson, 6 Heisk. (Tenn.) 271; Parsons v. Hardy, 14 Wend. (N. Y.) 215 (28 Am. Dec. 521); Vencill v. R. R., 132 Mo. App. 722 (112 S. W. 1030).
One of the leading cases on this subject is St. Louis Co. v. Brosius, 47 Tex. Civ. App. 647 (105 S. W. 1131), from which we quote the following:
*182If a burden rested upon appellant to account for the origin of the disease and to show absence of negligence on its part, then the court properly submitted the issues, and it was the province of the jury to determine whether or not this had been done. In this state a carrier assumes the same degree of liability in the carriage of live stock as it does in any other class of freight, subject to such exceptions, on account of the inherent nature of the property, as justice and common fairness would impose. Mo. Pac. Ry. v. Harris, 67 Tex. 166 (2 S. W. 575). We know of no established rule by which to determine with exactness in every case what injuries furnish, from their mere presence, prima facie evidence of negligence, and those that do not. But we feel sure that the mere fact that an animal, apparently sound when delivered for shipment, arrives at its destination sick with a disorder, such as pneumonia, should not raise the presumption that the carrier had been guilty of negligence which caused it. Weed v. I. & G. N. Ry., 21 Tex. Civ. App. 689 (53 S. W. 356); L. & N. Ry. Co. v. Wathen (Ky.), 49 S. W. 185; Id., 66 S. W. 714; Hussey v. Saragossa, 3 Woods C. C. (U. S.) 380 (Fed. Cas. No. 6,949); New York, L. E. & W. R. R. Co. v. Estill, 147 U. S. 617 (13 Sup. Ct. 444, 37 L. Ed. 292); Long v. Pa. Ry. Co., 147 Pa. 343 (23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732); Schaeffer v. Railway Co., 168 Pa. 209 (31 Atl. 1088, 47 Am. St. Rep. 884); Railway Co. v. Raiordon, 119 Pa. 577 (13 Atl. 324, 4 Am. St. Rep. 670.
Some expressions which seem to run counter to these views are to be found in Kinnick v. Railroad Co., 69 Iowa, 665. They were not necessáry, however, to the decision and in so far as they are opposed to the rule here announced they must be disapproved. There is nothing in Swiney v. American Exp. Co., 144 Iowa, 342, which runs counter to this view. In that case the doctrine of ordinary and reasonable care and prudence in the handling of live stock and perishable property is expressly recognized and applied; but, as the owner did not accompany the animal which was being shipped, the burden was held to be upon *183the defendant to show that the injury to the hog did not occur through its negligence. In reviewing the cases bearing upon the degree of care which a carrier owes when the subject of shipment is live stock or other perishable goods, confusion has sometimes resulted through a failure to consider the fact that the owner was not in personal charge of the goods. The degree of care on the part of the carrier is the same in either case, but where the shipper accompanies the property the burden is upon him, as we shall presently see, of showing that the damage did not result through any fault of his own in loading or caring for the stock. And, as a general rule, he must also show such a state of facts as makes out a prima facie case of negligence on the part of the defendant.
2. Same: burden of proof. II. The instruction quoted, as well as others, placed the burden upon defendant of showing that the damages done to the cattle were not the result of its (defendant’s) negligence. Plaintiff in this case accompanied the stock, and he assumed the burden of proving defendant’s negligence not only in his pleading, but in the introduction of his testimony. The rule in this state and the rule „ which generally obtains in such cases is as follows: “But where the shipper accompanies the live stock on the transit, the burden is not on the carrier to prove that loss or injury was occasioned by the inherent or natural propensities of the animals themselyes, since in that case the carrier has not the sole custody of the animals. In such a ease no presumption of negligence arises merely from the loss or injury. Where the shipper is in charge of his own live stock in transit, he is presumed to know the cause of the loss or injury.” St. Louis, etc., R. Co. v. Wells, 81 Ark. 469 (99 S. W. 534); Adams Express Co. v. Bratton, 106 Ill. App. 563.
In Cincinnati, etc., R. Co. v. Greening, 30 Ky. Law Rep. 1180 (100 S. W. 825), the court said:
*184The evidence is uncontradicted that, when the stock were delivered to the carriers at Moreland, Ky., they were in first-class condition; when they were received by the shipper at Atlanta, Ga., they were bruised, cut, starved, and otherwise greatly injured. Neither appellee nor any person representing him accompanied the stock. They were in the exclusive care and custody of the carrier from the time they were received until their delivery, and, under circumstances like these, the carrier will not be exonerated from liability merely by introducing its employees to show that it was not guilty of any negligence in the transportation. It is true that carriers of live stock are not insurers, as are carriers of goods and other inanimate freight, but, as said in Louisville, C. & St. L. R. Co. v. Hedger, 9 Bush (Ky.) 645 (15 Am. Rep. 740) : (The company, when it undertakes the exercise of this public employment, should be held to a greater degree of diligence than that required of a mere bailee. The liability of the carrier, it is true, is greatly lessened by relaxing the rule applicable to carrying ordinary goods and wares. Still, this modification of the principle does not relieve him from that high degree of diligence that the nature of the employment requires. In affording means of transportation, the company should be held to that degree of care and diligence that a prudent and careful person would exercise in such matters, and if the live stock should be lost or injured while in the custody and care of the company, or its agents, for transportation, this should be prima facie evidence of negligence, and the burden of proof is on the carrier to rebut this presumption.’ Where, however, the shipper accompanies the stock, then a different rule as to the burden of proof obtains. ■ Thus, in the case supra, it is said: Where the owner contracts, however, to load and unload his stock and to take charge of them during transportation, as in this case, and does in fact do so, the burden of proof, where the company is charged with negligence for the loss or injury to the stock, is upon the owner, as the party who has the care of the stock is presumed to know how the injury occurred, and must himself suffer the loss, unless negligence is shown on the part of the carrier or employees.’ To the same effect is Louisville & N. R. R. Co. v. Wathen, 22 Ky. Law Rep. 82 (49 S. W. 185); Louisville & N. R. R. Co. v. *185Harned, 23 Ky. Law Rep. 1651 (66 S. W. 25). In Hutchinson on Carriers, section 1357, the rule is thus stated: ‘If live stock which is being transported is under the carrier’s exclusive control, its delivery at destination in an injured condition will be prima facie evidence that the injury arose from some cause for which he was responsible, and he will be liable to the extent to which the 'shipper is damaged, unless he can show that the injury resulted from a cause for which he will be excised by the law, or by the terms of his contract. But where, as is frequently the case, the shipper accompanies his' live stock for the purpose of caring for it during the transportation, the same rule as to the burden of proof is held not to apply. The stock is not in the carrier’s exclusive 'Control or custody, nor are his means of information superior to those of the shipper, who is in a position to know as well as the carrier of the causes which produce the injury. In order, therefore, that the shipper who accompanies his live stock may recover for injuries received by him during the transportation, he must not only show that he himself was free from negligence, but that the injuries were caused by a breach of duty on the part of the carrier.’ Therefore, the stock having been received by the carriers in good condition, and being in their exclusive custody, and not accompanied hy the owner, the burden of proof was upon them to show how the injuries received by the stock occurred, and that they were not attributable to their negligence.
Our own cases support this view. See Faust v. R. R. Co., 104 Iowa, 241; Grieve v. R. R., 104 Iowa, 664; Burgher v. Ry. Co., 105 Iowa, 335; McMamus v. Ry. Co., 138 Iowa, 151. See, also, Railroad Co. v. Sherwood, 132 Ind. 129 (31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239).
In 4 Elliott on Railways, section 1549, Judge Elliott says:
The fáet that the owner, or his agent, is furnished transportation by the carrier and goes with his cattle or horses to look after and care for them, especially if he has agreed to do so in the contract of carriage, often exerts *186an important influence in determining the duties and liabilities of the carrier in the particular case. As we shall hereafter show it may relieve the carrier from the duty to feed and water and otherwise give particular attention to the stock; but it will not relieve the carrier from the duty to afford the owner reasonable opportunities for so doing. The fact that the owner accompanies the stock and takes charge of it may also be important upon the question of contributory negligence. . . . So, where the owner accompanies the stock, under a special contract to care for them himself, he may well be presumed to be as well acquainted with the facts in regard to their loss or injury as the carrier, and as they may have been injured because of his own negligence, or because of their inherent nature and propensities, and not by the negligence of the carrier, it is but just to require him to show the facts. The rule in such cases, therefore, is that the burden of proof, is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the injury or loss, and if the carrier is liable only for negligence, the burden is upon the plaintiff to show such negligence. It has also been held that a railroad company is not liable as an insurer where the car in which animals are shipped is in the possession and control of their owner under a contract that he should take care of them, and that if they are injured by the act of the owner the carrier is not liable no matter whether such act was negligent or not. The court further held, in the case just referred to, that even if the special contract was prohibited by statute, and therefore invalid, there could be no recovery.
3. Same: evidence' III. Defendant offered to show what plaintiff said to the conductor of the train who took the car of cattle from River Junction to Dubuque; to the effect that the reason why the cattle were down in the car and were in a damaged condition was that the commission men who loaded them at South St. Paul put too many in the car; and that he said nothing about the cattle being' frozen. There was no testimony that any one of defendant’s agents had inspected the car when loaded, but defendant did issue a bill of lading or live stock contract *187which recited that the car of cattle weighed twenty-two thousand pounds and was received in apparent good order for shipment to Lansing, Iowa. There is no testimony that defendant weighed the cattle; but the evidence showed that no matter what the weight, the shipper-, had to pay for the car on the basis of twenty-two thousand pounds. Under the rules heretofore announced we think these admissions of the plaintiff should have been received in evidence. Nothing in Kinnick v. R. R. Co., 69 Iowa, 665, runs counter to this view. At most it was a question for the jury to determine under all the testimony as to whether or not defendant knew or should have known the manner in which the stock was loaded and assumed the risks incident thereto. There were sixty-two head of these cattle loaded into the car, and defendant claims that this was too great a number, and that this was the cause of the trouble. We think the testimony of the conductor should have been received.
Another witness who was a stock shipper and who saw the car of stock was asked as to whether or not it was overloaded, but he was not permitted to answer. We think his testimony should have been received. See Grieve v. R. R. Co., supra; Hart v. Ry. Co., 69 Iowa, 485. In the latter case it is said:
The carrier is held to be an insurer of the safety of the property while he has it in possession as a carrier. His undertaking for the care and safety of the property arises, by the implication of law, out of the contract for its carriage. The rule which holds him to be an insiirer of the property is founded upon considerations of public policy. The reason of the rule is that, as the carrier ordinarily has the absolute possession .and control of the property while it is in course of shipment, he has the most tempting opportunities for embezzlement or for fraudulent collusion with others. Therefore, if it is lost or destroyed while in his custody, the policy of the law imposes the loss upon him. Coggs v. Bernard, 2 Ld. Raym. 909; *188Forward v. Pittard, 1 Durn. & E. 27; Riley v. Horne, 5 Bing. 217; Thomas v. Railway Co., 10 Metc. (Mass.) 472 (43 Am. Dec. 444); Roberts v. Turner, 12 Johns. (N. Y.) 232 (7 Am. Dec. 311); Moses v. Railway Co., 24 N. H. 71 (55 Am. Dec. 222); Rixford v. Smith, 52 N. H. 355 (13 Am. Rep. 42). His undertaking for the safety of the property, however, is not absolute. He has never been held to be an insurer against injuries occasioned by the act of God, or the public enemy, and there is no reason why he should be,; and it is equally clear, we think, that there is no consideration of policy which demands that he should be held to account to the owner for an injury which is occasioned by the owner’s own act; and whether the act of the owner by which the injury was caused amounted to negligence is immaterial also. If the immediate cause of the loss was the act of the owner, as between the parties, absolute justice demands that the loss should fall upon him, rather than upon the one who has been guilty of no wrong; and it can make no difference that the act can not be said to be either wrongful or negligent.
4-Same ’ Competent stock shippers who saw the car of stock at New Albin were asked whether or not cattle would freeze in a car similar to the one in which plaintiff’s stock were shipped with a temperature such as was shown by the testimony to have existed at
Newport and at other points on defendant’s line of road. They were not permitted to answer. - We think these rulings were erroneous and that the testimony should have been received. Betts v. Ry. Co., 92 Iowa, 343; Hutchinson v. R. R. Co., 37 Minn. 524 (35 N. W. 433).
Eor the errors pointed out the judgment must be, and it is, reversed.