The opinion of the court was delivered by
Brewer, J.:A great many questions are presented by the record in this case, and .in some of them we find such errors as .will compel us to send the case back for another trial.
*628i. change or venne; pro tem. judges; Statutes constmod. *627I. When the case was called for trial the regular judge declined to sit as he had been of counsel in it. Plaintiff in error then *628applied to have the place of trial changed to some county where such objection did not exist. This applica- ” , ,. .. .. tion was overruled, and the election ot a mclge ? J ® <pro tem. ordered and had, and the trial proceeded with under such judge pro tem. Section 56 of the civil code as amended in 1870, (Laws 1870, p. 171, § 2,) provides that— .
“ In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or where the judge is interested or has been of counsel in the case, or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may on application of either party change the place of trial to some county where such objection does not exist.”
This is the latest expression of the legislative will on this subject; and upon it three questions are presented. First: Does the word “may,” as here used, require a construction equivalent to “must,” or is it merely a term of permission, leaving it optional and discretionary with the court to grant the change or not? The use of the word “may” in the sense of “ must ” is frequent in the law. It is not always easy to determine in any given case whether it is used in such sense. The rule as laid down by Chancellor Kent in Newburg Turnpike Co. v. Millar, 5 Johns. Ch., 113, is, that “the principle to be deduced from the cases is, that whenever an act to be done under a statute is to be done by a public officer and concerns the public interests or the rights of third persons which requires the performance of the act, then it becomes a duty on the officer to do it.” Sedgwick in his work on Stat. & Const. Law, p. 439, says: “That no general rule can be laid down upon the subject further than that exposition ought to be adopted in this as in other cases, which carries into effect the true intent and object of the legislature in the enactment.” Tried by either of the tests suggested by these eminent jurists and it is plain that here “may ” is to be construed as equivalent to “must.” The act to be done is one which affects materially the rights of third parties, rights which cannot be secured otherwise than by its performance. It is not an act *629for tbe benefit of tbe court, or tbe judge of tbe court, or which affects his rights. Therefore, according to Kent, when the circumstances arise for the doing of such act it becomes a duty, not an option, nor a discretion, with the court. Again, the evident intent of the legislature requires that we here construe “ may ” as “ must.” By this statute different contingencies are presented under which a change of the place of trial may be had. One is when it appears that a fair and impartial trial cannot be had in the county where the suit is pending. Under such a condition of things as that it cannot for a moment be supposed that the legislature meant that it should be opitional with the court whether to change the place of trial. As soon as the fact appears to him, and his judgment is convinced that a fair and impartial trial cannot be had in the one county, then it becomes an unquestioned dixty, made imperatively so by this statute, to transfer the case to another. Any other construction than this would be an imputation upon the legislature. But no distinction is made as to the "obligation to change between the different conditions for change. The word “ may ” is used but once, and refers to all the different conditions. If when a fair and impartial trial connot be had, a change must be made, so equally must it be when the judge is interested or has been of counsel. Second: It is urged that § é of eh. 28, Gen. Stat., provides for the election of a judge jpro tem. when the regular judge is interested or has been of counsel; that this section has not been repealed, and that, though the law of 1870 be a subsequent enactment, yet a fair construction, seeking to harmonize both, and to give effect to each, would leave it discretionary with the judge whether to change the place of trial, or order the election of a judge joro tem. The two sections are materially different, and provide for distinct contingencies. The law of 1870 operates only upon the application of one of the parties. The provisions of the general statute are vitalized by the mere disqualification of the judge. "When a case is for trial, if the judge has been of counsel and neither party moves in the matter, he orders the election of a judge yyro tem. under § 4 of ch. 28 *630above cited. If however either party desires, he may apply under the law of 1870, and by that is entitled to a change of the place of trial. The two acts harmonized do not vest a discretion in the judge, but grant a right to the parties. It is not left with him, but with them to decide whether to proceed under a judge pro tem., or to take a transfer. The law of 1870 thus adds a condition which is not in the General Statutes. It is not harmonizing, it is legislating, to ignore this condition, and then leave to an officer the choice as to which statute he will act under, especially when such choice might materially affect the rights of a party. Thwd: It is claimed that § 20 of art. 3 of the constitution affects this question. That section reads:
“ Seo. 20.-Pro vision shall be made by law for the selection, by the bar, of a pro tem. judge of the district court, when the judge is absent or otherwise unable or disqualified to sit in any case.”
In pursuance of this constitutional provision § 4 of ch. 28 of the General Statutes heretofore cited was enacted. It authorizes the election of a pro tem. j udge under the circumstances named. Now this constitutional provision can affect this question only for one of two reasons — either because it restricts the power of the legislature to dispose of a case pending in a court whose judge is disqualified to try it, or becairse in such a case it guarantees to a party litigant a trial in the same court before a judge pro tem. It is not in terms a denial of power. It does not purport to withhold or limit. Nor is it couched in the form of a grant. The act required, is an act of legislative power. It would pass to the legislature under the general grant. 'Without it, unless restrained by some other clause of the constitution, the legislature could do just what it has done and what it is authorized to do under this section. If therefore it neither grants power otherwise reserved, nor restricts power otherwise granted, why was it incorporated into the constitution, and what function does it perform? It is directory in its nature. It calls the attention of the legislature to a particular subject, and imposes a duty in that respect. It *631emphasizes the will of the people in reference to certain legislation; and being such, we know no reason for construing an imposition of duty as a restriction of power. It may be also that without this provision, the section of the constitution requiring district judges to be elected by the people would prevent the election of a judge pro tem. by the bar. It is not self-operative. It gives no rights to litigants except through legislative action. Until such action there would be no warrant for the election of a judge pro tem.; and the repeal of the law would take away any authority for such an election. How then can it guarantee to a suitor the right to a trial before a judge pro tem.? These considerations have led us to the conclusion that the district judge erred in refusing to change the place of trial. Ye see the hardship which may result in some eases, and think the rule ought to be as the district judge held it to be, that the court should have a discretion whether to change the place of trial or order the election of a judge pro tem. But we must take the law as we find it. Ye must ascertain and declare the legislative will as recorded, and if the rule that body has established be a harsh one, it alone has the power to alter it.
g Measure of non-dlih'W siLa°°umjt of inquiry, II. The contract alleged an the petition and proved was to transport cattle from Ogden to State Line. It was claimed that through delay in the transportation they had depreciated in value; also, that through the improper and negligent liandthem by the employees of plaintiff in error during their transportation they had suffered injury. regard to the depreciation by delay in transportation, it is not claimed that cattle were of less value at State Line in the evening than in the morning of the 8th of January, but that cattle are constantly shrinking in weight during confinement and transportation in cars, and the longer the time of carriage the greater the shrinkage. No fall of price is claimed, but simply a diminution of quantity. If the jury found these facts against the plaintiff in error, what then became the rule of damages % Unquestionably, the difference between their value at State Line and at the time and in the condition of their *632delivery, and the value tliey would have liad at the same place if transported without delay or injury. Sedgwick, in his work on damages, p. 279, says: “Where a given place is fixed on by the parties as that for delivery, it seems to be well settled that the inquiry as to prices is limited peremptorily to that particular place.” See also 2 Ark., 397; 18 Ill., 155; 8 Pick., 9; 4 Kas., 481. The learned judge who tried this case, in his instructions to the jury, recognized the correctness of this rule and gave it to them for their guidance in estimating the damages. But during the progress of the trial he permitted the defendant in error to show, over objection, what became of the cattle after they reached State Line, that they were forwarded to St. Louis, the time occupied in shipment, the manner of transportation, the disposition made of them in St. Louis, the price at which they were sold there, their value in the condition they were when they reached St. Louis, and the value of cattle in good condition at that place. Indeed, the bulk of the testimony as to prices and values had reference to the St. Louis market. The only witness who testified as to the value at State Line, Stacey Seymour, one of the plaintiffs, on cross-examination declared: “I don’t know what our cattle were worth at State Line, or would have brought on the 8th of January.” The cattle were due at the State Line on the morning of the 8th, and reached there during the night following. In permitting this range of testimony we think the court erred. The value of the cattle at a subsequent time, and in a different market, might be affected by many considerations. Yalues change in proportion to the demand and supply. A few days might make material alteration. The treatment received, and the care and attention bestowed subsequent to the delivery at State Line would of course affect their condition and value. The range of inquiry would be widely extended, and the attention of the jury distracted by the multitude of questions from the material fact. The plaintiff in error could not be supposed to keep track of the cattle subsequent to their delivery, or be prepared with testimony as to the care and treatment they thereafter received. If their value three days after in the St. *633Louis market was proper subject of inquiry, wby not their value a week after in the city of New York, or a month after in the Liverpool market?
3. verdicts; Particular questions; special findings. III. At the request of plaintiff in error the court submitted certain questions of fact to the jury, and directed a written finding thereon. Seven questions were thus submitted. To five of them the jury returned only this answer— o o « “Unable to agree.” A general verdict was also ren- , ° ° , dered. This verdict and answers the court received, and upon them rendered judgment. Under the code of 1868 it was discretionary with the court whether to require findings upon particular questions of fact when a general verdict was returned: Gen. Stat., p. 684, § 286. Under that law it might be that the court could properly receive and act upon a general verdict, even though no finding was returned upon any of the particular questions submitted. At least such seems to have been the ruling in New York. In Moss v. Priest, 1 Robt., 632, a case in which the jury failed to return any answers in writing to the particular questions submitted, Bobertson, J., says: “ Being a matter of discretion, I apprehend the court can withdraw the discretion at any time before the special finding is given, and the'general verdict can be received without it. No vested right is acquired by either party to have the findings given, because the court had once so directed it.” But by the amendment made in 1870 to our code, (Laws 1870, p. 173, § 7,) this which was before a discretion with the court has become a right of either party. It is made the duty of the court upon the request of either party “ to instruct the jury if they shall render a general verdict to find upon particular questions of fact, to be stated in wilting, and shall direct a written finding thereon.” The right of a party to these special findings is absolute. It cannot be withheld by the court* By another section of the code these sjiecial findings, if inconsistent with, control the general verdict. So it is a substantial right. It is secured only when the jury have returned written findings to *634all the questions submitted. “Unable to agree” is no finding. The report of the jury is as incomplete without answers to the particular questions as it would be without a general verdict, excepting in this, that upon a general verdict without answers to particular questions a judgment could always be rendered disposing of all the issues, whereas upon answers to particular questions without a general verdict no judgment could be rendered disposing of all the issues, unless all the questions involved were specially submitted. In other words, findings of fact need not always embrace all the questions at issue. A verdict so incomplete should not be received as a verdict at all. If the jury cannot agree upon the particular questions, they should be discharged, and the case submitted to a new jury, precisely as though they were unable to agree upon a general verdict. But it may be said that a party might desire to have immaterial questions submitted. Then the court should not submit them. The right of a party to findings upon particular questions is only a right to findings upon questions material in the case. He cannot pass outside of those facts which are essential to and determine some portion of the claim or defense. His rights are limited by the questions at issue. True, he is not restricted to those general, elemental facts found in a special verdict, but he cannot go out of the case, nor even within the range of the testimony, and insist upon the submission of a question whose answer can in nowise affect the rights of the parties or the result of the suit. No court should permit the record to be encumbered with trivial and immaterial, questions. It would be as improper to submit a question of fact not. involved in the case, as to instruct upon an abstract proposition of law foreign to the issues.
4. Common carriers; Railroads: transporting cattle. IY. A special contract of shipment was proved. It provided that the company is “hereby released from all liability for damages of whatsoever kind that may happen during the transit. This company do not assume to transport stock in any given time.” Upon this contract hinges this case. It was claimed by the plaintiff in error that as to these cattle it was not a common carrier — that *635it could make any conditions of shipment it saw fit; that the contract as signed stated the full measure of obligation it assumed, and hence that it was not liable for any supposed injuries, whether caused by negligence or delay, in transportation. Counsel for plaintiff in error says in his brief, using the language of Judge Christiancy in the ease of the Mich. S. & North. Ind. R. R. Co. v. McDonough & Andrews: “The company were not bound to receive or transport cattle or hogs as common carriers, and subject to the liabilities attached to that character; but they might legally refuse to convey them in that or any other capacity. And having the right to refuse altogether, they must have the right to refuse except upon such terms and conditions as they saw fit to require; and these conditions might, I think, be fixed by special contract, or by notice, or by their uniform course of doing that branch of business.” That the questions involved herein are of vital importance in this state is obvious. The immense and constantly increasing transportation of cattle from the states and territories south and west of us over the railways of this state, our extensive prairies and plains with nutritious grasses and ample pasture foreshadowing in the future stock-raising as the main business of the farmer, combine to give to these matters paramount interest. Upon the trial the presiding judge refused instructions asked by plaintiff in error embodying the claims above presented, and in lieu thereof laid down the law thus:
“ It will be advisable for you first to determine whether the railway company was a common carrier; and I instruct you that a common carrier is one who undertakes for reward to transport the chattels of such as choose to employ him for that purpose; and if this company, at the time when they received the cattle in question, were in the habit of transporting the cattle of such parties as applied to them for such services, I instruct you that they are to be regarded as common carriers of cattle at that time. * * * From all the evidence touching the question yon will determine whether yon are reasonably satisfied that the company were common carriers of cattle. If you find that they were common carriers of cattle, I instruct you, that since there is no charge of misfeasance or malfeasance, the defendant is exonerated by the writing, which styles itself *636a release, from all liability for any damages arising from any causes except such, if any, as arose from their own negligence; and I further instruct you that they are liable for any and all damages accruing from their own negligence, if any such you find.
“ If you believe from the evidence that one of the plaintiffs, with a servant under his control and direction, assumed the care and management of the cattle while in the cars, the defendant is not liable for any damage 'which such plaintiff and servant could have prevented by reasonable care and exertion, although the same may have occurred from defendant’s negligence.
“ If you believe from the evidence that it was the duty of the defendant to unload, or to provide feed and water for the cattle at State Line, the defendant is liable for any damage that may have occurred from any unreasonable delay in providing them, after their arrival, or unloading, as the case maybe; and yon will' judge whether the evidence reasonably satisfies you that the train arrived about 9 o’clock p. m.; that the cattle remained-until 11 o’clock, in the cars; that forage was obtained at 12 o’clock, and water about 1 o’clock, as testified by Williams; and it is immaterial whether the company kept its own supplies of those articles, and their own servants for their disposition, or whether they relied upon other parties to furnish them, under their patronage. You are to consider what Tompkins, and other witnesses, say about the practice and necessity of feeding and watering at that place.
“The defendant is liable for any damage suffered by the plaintiffs by reason of any negligence of defendant in the hauling and conduct of the train on which the cattle were carried, as well as for negligence in providing necessary wayside conveniences.”
Did the plaintiff in error act in the capacity of a common carrier in the transportation of these cattle, or was it entitled to the instruction refused, “ that it did not transport the cattle in question as a common carrier?” It transported them either as a common or a private carrier. Two vital distinctions in the measure of duty and responsibility incurred by carriers are these: The common carrier must carry for all who choose to employ him. The private can accept the goods of one and refuse those of another. The' common carrier insures against all loss save that caused by the act of Glod, or the public enemy. The private carrier is responsible only for ordinary care. *637Hence, whether the company was a common or private carrier is obviously vital. An idea seems to be obtaining in some directions that so far as regards the transportation of live stock railroad companies are not common carriers. This is countenanced by the dicta of several judges, and by some decisions. To this doctrine we cannot give our assent. It seems to us that whenever and in so far as they assume to transport property they do so as common carriers. The sole purpose for which railroads are built is transportation. The only legitimate business in which they can engage is transportation. They perform a public duty, are engaged in a public employment, and subserve a public use so far, that, as established by the decisions of this court as well as those of the highest courts of many other states, taxation of the community in aid of their construction can be sustained. Above all other carriers are they dignified by judicial decisions as public agencies. Alone of carriers have they obtained public assistance. It is with ill grace then that they seek to avoid the responsibility which is assumed by all others who engage in the business of transportation. Eeceiving funds of the public to aid in construction, and then claiming to be simply private carriers in transporting for that public, presents an unseemly contradiction. Tried by all the definitions in the text-books and approved decisions, railroad companies are common carriers in reference to all property they assume to carry. Chief Justice Parker in Dwight v. Brewster, 1 Pick., 50, defined a common carrier to be “ one who undertakes for hire to transport the goods of such as choose to employ him from place to place.” Edwards in his work on Bailments says: “To constitute him a common carrier he must be one who as a regular business, undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.” Story says “ he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hoc vice.” To the same effect are the definitions given by Angelí, Kent, Bouvier, and others. Can anything be plainer than that within *638the scope of these definitions a railroad company is a common carrier? Transportation is its business, not a casual occupation. How frequently has it been mulcted in damages for refusing to receive and transport passengers upon equal terms? This could never be sustained if it was only a private carrier. As a common carrier it is entitled to all the privileges, and subject to all the conditions and obligations which belong to such employment. Among these is this: One may be a common carrier in reference to certain classes of goods without being under any obligation to transport a different class. He is not under obligations to transport such goods as his vehicles are not .suitable to carry. A light express wagon employed as a business in carrying small parcels from one part of a city to another, is engaged in the business of a common carrier; yet no obligation rests upon the proprietor to carry in it a piano or other heavy bulky article, whose size and weight would endanger his vehicle; nor is he under obligation to provide vehicles suitable for the transportation of such goods. It is enough if he receives and carriers such goods as are suitable for his vehicles. As Baron Parke said in Carr v. The Lancashire & Yorkshire Rly. Co., 7 Excheq., 711: “ Most certainly every common carrier is bound only to carry the goods of that description which the public calling requires him to carry. That is established by the case of Johnson v. The Midland Rly. Co., 4 Excheq., 367.” See also Judge Denio, in Wilbert v. N. Y. & Erie R. R. Co., 12 N. Y., 245: “ A carrier may lawfully refuse to receive goods offered for transportation, because his coach is full, or because he has not the means of transporting such goods: Morse v. Slue, 1 Vent., 190-238; Lane v. Cotten, 1 Ld. Raymond, 646, 652; Story on Bailments, § 508.” By this rule railroad companies, like other common carriers, unless restricted by some requirement of their charter, or the statutes, not having vehicles suitable for, nor holding themselves out as engaged in the business of carrying cattle, may lawfully refuse to transport them. But this is a qualification incident to the business, common to all carriers and not limited to any particular species of property.
*639It is claimed there is a difference between live stock and other property as to the responsibility assumed by a carrier in its transportation; that the voluntary motion of the stock introduces an element of danger into the transportation against which neither reason nor authority require that the ,carrier insure; that inasmuch as it is customary that the shipper, or some one for him, accompany the stock, there is only a qualified or partial delivery to the carrier; and also, that proof that a railroad company has suitable cars and is engaged in the business of carrying cattle is not proof that it is a common carrier as to such cattle, because to insure their safe transportation requires yards and stables, with conveniences for feeding, both at the termini and along the route, as well as a corps of experienced stockmen to take care of them in the transit. These last as it seems to us are duties incident to the employment, and not elements to determine its character. Engaging in the business of transporting cattle, it becomes a duty to provide every suitable facility therefor. Not the manner of doing the work, but the fact of engaging in the business, is the test laid down in the books for determining the character of the carrier. A proper system of brakes is necessary on every passenger train to insure the safety of those on board. Is it not enough to show that a railroad company has passenger coaches, and is engaged' in the business of carrying passengers, to establish its character as a common carrier? Must it also be shown that the train is provided with a proper system of brakes, and all the other requisites of safety? Would proof that these were wanting diminish the responsibility of the carrier? Will failure of duty lessen the obligation? If we were to take judicial notice of the fact that the shipper or some one for him goes with the stock to take care of it during transportation, we should also be compelled to take judicial notice that the shipment is, as in this case, by special contract. The company thus limits responsibility, and the shipper assumes more of the risk. That the voluntary motion of the stock increases the risk of transportation, is evident. But increase of risk does not diminish responsibility. *640It calls for more care. There is more risk in carrying mirrors than railroad iron. The carrier’s measure of obligations is the same. Petroleum, gunpowder, and nitro-glycerine, particularly the latter, are very dangerous to transport; yet if one engages in the business of carrying them, does he not assume the obligations of a common carrier. That a contract by which a shipper assumes all risk from the action of the cattle themselves, is a reasonable one, cannot be questioned. It may be that without any special contract the law ought to be so changed that such risk be assumed by the shipper; but such change must it seems to us be made by the legislature, and not by the courts. It is said that the carrier of slaves did not insure their safety, and that cattle should be placed upon the same footing as slaves. That earners of slaves were not insurers, was, it is true, the nearly uniform ruling of courts: 2 Pet., 150; 4 McCord, 223; 4 Porter, (Ala.,) 234. It was a ruling growing out of the anomalous character of the institution, rather than logically sustained by the rules of the common law. Slaves were held to be passengers. It would hardly do to say that cattle were passengers, and that the measure of obligation in their transportation was the same. On this general subject the language of Judge Ranney in the case of Wilson v. Hamilton, 4 Ohio St., 722, is in point: “We have been no more fortunate in finding any sufficient support for the position that the responsibilities of a common carrier in respect to other property do not attach to the carriage of living animals. No such distinction has anywhere been recognized. The contrary is expressly laid down by the elementary authors to which I have referred, as well as in several of the cases cited; to which may be added others: Angelí on Carriers, § 214; Story on Bailments, § 546; Stewart v. Crawley, 2 Stark, 323; Porterfield v. Brooks, 8 Humph., 497; Palmer v. Grand Junction Rly., 4 M. & Welsby, 749. This qitestion has within a few years, from the great numbers of domestic cattle now carried from the west to the east, by land and water, assumed a very decided importance; bxxt we can feel no hesitation in declaring that those who undertake their transportation take upon themselves the obli*641gation to deliver them safely against all contingencies, except such as would excuse for the non-delivery of other property.”
The conclusion then to which we have arrived is, that a railroad company engaging in the business of transporting cattle assumes all the responsibilities of a common carrier. It insures against all loss except that caused by the act of God, or the public enemy.* If it would relieve itself of this responsibility it must take the same steps as in the transportation of any other property. It may do this by special contract, but such contract never relieves against negligence: 26 Vt., 247.
Y. The court refused the following instruction asked for by plaintiff in error:
“ Where carriers have restricted their liabilities by special contract and acceptance by the shipper, the burden of establishing the fact of negligence is upon the plaintiff.”
And of its own motion thus charged the jury:
“ From all the circumstances, satisfy yourselves as well as you can on these points, if you award damages; and remembering that in this, as in the rest, except as to the negligence, the burden of proof is upon the plaintiffs.”
s.Ne^encctraot^buSen of proof. This is wrong. The contrary rule was laid down in Kallman v. The U. S. Ex. Co., 3 Kas., 205. In that case Judge Safford, speaking for the court, says: “But when carriers have once succeeded in restricting their liability by special contract or acceptance, where does the burden of proof rest as to the question of negligence? The authorities seem to be clear and uniform on this point, that the burden of establishing the fact of negligence is upon the plaintiff.” This states the law as we understand it.
We have thus examined all the questions we deem likely to arise on a subsequent trial of the case. For the reasons given the judgment of the district court will be reversed, and the case remanded with instructions to sustain the application for a change of the place of trial
All the Justices concurring.[* See National Bank v. Peck, post, 660, where this whole subject is fully discussed, and the statute construed.]
[ * In tlie case of Kansas Pacific Rly. Co. v. Nichols and Kennedy, decided in this court at the January Term, 1872, and to be reported in 9 Kas., the common-law liability of railway companies as common carriers is discussed at length, and somewhat in reply to the argument of the Michigan cases deciding against such liability. The supreme court of Kansas there, as here, affirms such liability. — Reporteb.]