delivered the opinion of the court.
Under the special contract in evidence, and under which the appellee seeks a recovery, the defendant corporation let to appellee an entire car to be used by him in the transportation of what is denominated “ emigrant movables,” consisting, in this instance, of six horses and a lot of miscellaneous property — corn, feed-stuff, *459furniture, etc. The car was under the charge and in the care of appellee, was loaded by him at his own discretion, and was held in the defendant’s yards at Chicago, to meet appellee’s wishes, for about three days, in order to permit him to complete his load, and this while the horses were all on the car, they having been loaded at a point thirty miles north of Chicago. The contract stipulated, for the railroad company, against liability on its part, except for injuries resulting from collisions or derailment in transportation. That the railroad limited its liability for wilful injuries or gross negligence is not contended by its counsel. By this special contract, the appellee agreed to feed, water and take care of his stock, and to load and unload the animals, and to exempt the railroad company from loss occurring by jumping from the cars, delay of trains, or any damage the stock might sustain, except such as should result from collisions or derailment of cars in course of transportation.
Suitable provision was made for feeding and watering the stock on the car, and they were properly fed and watered by appellee, who accompanied the stock, without further charge than the price paid for the use of the car.
After the stock had been loaded and kept confined in the car for nearly three days, the appellee completed his additional loading, and the car was taken in charge by appellant to be transported on its route to Jackson, Mississippi.
The next day after leaving Chicago, appellee discovered that one of the young stallions was down in the car. He got it up, but before reaching Centraba, and about a day after the journey had been begun, the same young animal was found down again, and,. as was thought by appellee, to be down finally, as he expresses it. On reaching Centraba, appellee made application to the railroad company’s agent to be laid out for twenty-four hours, to the end that he might re-arrange his load (then plainly seen to have been improperly loaded) and to rest his stock, which application was not accepted and complied with, though the car of appellee was actually taken out of the train in which it was being carried, and was permitted to lie at Centraba for a few hours — a time too short, how*460ever, as appellee thought, to afford him opportunity to unload, rest his stock and re-arrange the load.
The question, then, which meets us on the threshold of the case, and whose determination by us may prove conclusive of the entire controversy, is, had the appellee the right to demand that he be laid out at Centraba ?
If he had this right, how was it acquired ? Was it an implied obligation resting upon the railroad ? If it finds rest under the contract, it will be found by implication. There is no express obligation of this character appearing in the face of the instrument. If it was'an implied obligation on the railroad, how is the implication raised ? If it was the custom of the railroad company to lay out cars in which a few horses were carried, then there was an implied obligation assumed to comply with such custom, on the part of the railroad. But the undisputed evidence perfectly shows, that while it was the custom to lay out car-load lots of animals every 24 or 28 hours, in order that they might be fed, watered and cared foi’, no such custom prevailed or existed in cases where a few animals only were loaded in a car, and where provision was made thereon for watering and feeding the animals. The custom was unknown in cases of the latter character. Nor does the absence of the custom seem unnatural, there being no necessity, apparently, in ordinary cases, for any unloading. The cases referred to by appellee’s counsel in 42 Illinois, 474, and 71 Ib. 434, raised an implied obligation on the carrier to throw water on hogs crowded in a car, because of the known custom of railroads to so apply water to that particular animal. The other case relied upon by counsel for appellee is that of Kinnick v. R. R. Co., 27 Am. & Eng. R. R. Cases, 55. In that case the railroad company received a car-load of hogs from plaintiff, and after loading and starting them on their journey, there was such delay, by reason of the wrecking o-f another train, that a number of the hogs died, and the court held, as it was a natural propensity of hogs to struggle to get near to or away from the doors of a car, when it is left standing, and to “ pile up” on each other in such struggles, and thereby produce injury or death, and as it appeared that the injuries com*461plained of were attributable to the failure of the railroad company to give the animals any attention during the twelve hours during which the train was standing still, because of the obstructing wreck, .that the company was liable because of its negligence, in this extraordinary danger to the animals, in failing to do what the delay and consequent peril to the animals required should be done. We fail to see any support, in any of these cases, for the proposition that there was an implied obligation, in the case at bar, upon the railroad company to lay out the car, which appellee had hired, for twenty-four hours, at Centraba. The contrary is involved in these decisions, as we understand them.
In the absence of any custom imposing obligation to lay out on the appellee, what is there in the conduct of the parties to the contract before us which will authorize us to say that any purpose to lay out the car, after it had been started on its way to its destination, was in the minds of the company and the appellee ? What is the foundation for implying that the minds of the parties ever dwelt upon or met in any unexpressed agreement that appellee should have such right ? We have been unable to find any circumstance, even, which tends to support that proposition. On the other hand, there is much in the evidence of the appellee which strongly shows that he regarded the use of the car as confined to one continuous trip. He placed three horses in each end of the car, and then partitioned both ends in front of the horses, their heads being toward the middle doors of the car. He likewise made stalls for the horses, respectively, within the partitioned spaces, and then he proceeded to fill up the vacant space in the middle of the car with a large quantity of corn and other feed-stuff, household goods, etc. The whole arrangement of the car-load, as made by the appellee, precluded the unloading of Ihe car, unless with much labor and considerable time. It is perfectly apparent that neither when the contract was executed, nor when the car was loaded, was there any thought of having a lay-out accorded him while on the way, in the mind of appellee himself, even. We fail to find any ground for maintaining that there was any implied obligation, under the contract, to give appellee the desired lay-out.
*462It is said by counsel for apj)ellee that by § 4386, revised statutes of U. S., a definite rule for the transportation of animals is created, and penalties prescribed for disregard of the rule. With, this rule, and its enforcement, the courts of the state are no way concerned. But the act itself, in a subsequent section, provides for the recovery of the penalty in a civil action in the proper federal court. It is waste of words to say moré-
is there an obligation, founded in common humanity, which required the railroad company to lay out appellee’s car, in order that dumb brutes may have relief from suffering and x-escue from death ? It is not necessary for us to answer. The evidence satisfies us that the appellee did not himself think the stock in the condition indicated in the foregoing question when he made his request at Cen-traba to be laid out. Surely it cannot be believed that if he then knew, or had reason to know, that very valuable stallions [one of which he had paid $800 for] and valuable mares, were in peril of impending death or serious injury, self-interest, as well as humanity, would not have constrained him to make a new contract for longer use of his car, or, if necessary, to abandon altogether his then contract with the railroad company, and take the chances of the trifling loss of sixty dollars which he had bound himself to pay the railroad, by then and there unloading his car and leaving the train.
It is manifest that by keeping his stock on the car for three days before starting them southward from Chicago, and by so loading the car as to render it impossible to take the stock out without great trouble and delay, the appellee had placed himself in the unfortunate situation which confronted him at Centraba, and from which he could only extricate himself by making a new contract for the use of the car for a longer time than originally thought needful, or by abandoning his contract altogether, and removing his stock from the train.
As these views, for the-present, appear to cut up by the roots appellee’s contention, we find it unnecessary to express any opinion on any other point involved.
Reversed and remanded.