L., N. O. & T. Ry. Co. v. Bigger , 66 Miss. 319 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

There is dispute as to whether the special contract was fairly made, and understood by appellee, and we dispose of the case as if there were no special contract. The tenth instruction asked by appellant should have been given. Leaving the special contract out of view, appellant was not liable on the facts proved. The burden of proof was on it to acquit itself of liability, and this was done. Chicago, etc., R. R. Co. v. Abels, 60 Miss. 1017.

It is not shown how the hoof of the mule was torn off, or whether it was done on the train, or after it left the train ; but it does appear, that the car in which the mule was carried, was suitable, that the track was in good condition, that the equipments and appliances of the train were adequate, that'there was no culpable delay in the transit, and that there was no fault, negligence or want of care in any respect on the part of the carrier or its employees in handling the stock, or in the running or management of the train. Under these circumstances, the carrier is not liable for the injury to the mule, which may have been self-inflicted or caused by the other mules in the car, if, indeed, the injury occurred on the train.

It is true, that upon receipt of the mule for transportation, leaving the special contract out of view, appellant incurred the general liability of a common carrier. But what is the liability of a common carrier, at common law? The rule, as' it is ordinarily stated, is that a common carrier is liable for all losses, except those occasioned by the act of God or the public enemy.

The exception to this rule is broader than it is stated above, or if not so, it has been extended by judicial opinion. The act of God or the public enemy, is not the limit of the exemption from liability of the common carrier at common law. He was never liable, within the general rule, for losses or injuries produced by the nature and inherent character of the property, such as the ordinary and natural decay of fruit, vegetables and other perishable articles; and the fermentation, evaporation or unavoidable leakage of liquids. Au injury inflicted upon an animal by itself, without fault on the part of the carrier, or caused by other animals with which it is being shipped in the same car, comes within the reason and spirit of the exception to the rule of exemption from common law liability in its broader and true definition.

Animals when being transported in a manner contrary to their habits and instincts, may injure or destroy themselves, or each other, notwithstanding every reasonable precaution may be used to prevent it. For such occurrences the carrier is not answerable. He is relieved from responsibility for casualties of this description, if he shows that he has provided suitable means of transportation, and exercised that degree of care which the nature of the property requires. Story on Bailments, §§ 492a, 576 ; Clarke v. Rochester and Syracuse R. R. Co., 14 N. Y. 570; Great Western R. R. Co. v. Blower, 2 Eng. R. (Moaks) 700; Smith v. New Haven and Northampton R. R. Co., 12 Allen 531; Evans v. Fitchburg R. R. Co., 111 Mass. 142; Bamping v. S. C. R. R. Co., 9 S. C. 61; E. T. V. & G. R. R. Co. v. Johnston, 75 Ala. 596.

Judgment reversed and cause remanded.