| Me. | Dec 9, 1902
The Wabash Railroad Company received from the plaintiff’s agent at Chicago twenty horses for transportation over its own and connecting railroads to Bangor. In the course of that transportation these horses were received alive and apparently in good condition at Montreal by the Canadian Pacific Railway Company, the defendant, but when the car containing them was delivered by the defendant company to the Bangor and Aroostook Railroad Company at Brownville Junction, two of the horses were found dead in the car. This action is to recover the value of these two horses, and the plaintiff' in his declaration has counted upon the common law liability of the defendant company as a common carrier.
The defendant, however, pleaded and put in evidence a special written contract made between the plaintiff' and the Wabash Railroad Company, for itself and connecting railroads, to govern the transportation of the twenty horses. In this written contract among other stipulations were these: — (1) that the plaintiff should load and unload the horses and take care of them while being transported at his own risk and expense; — (2) that he should feed, water and take care of his horses at his own expense and risk and to assume all risk of injury and damage that the horses might do to themselves or each other, or which might arise from delay of trains; — (3) that he would not hold the Wabash Company or any connecting.railroad company responsible for any loss, damage or injury which might happen to the horses or be sustained by them while being loaded, forwarded, or unloaded, or from suffocation while in the cars, or from any injury caused by over-loading cars, or from fright of animals, or from crowding' upon one another. These stipulations were made upon sufficient consideration,, and their reasonableness and consequent validity are not questioned; nor is it questioned that the defendant company, operating a connecting railroad, is entitled .to the benefit of them.
The first question is whether the evidence shows, prima facie at least, that the death of the two horses was the result of some of the
We think it does. All the twenty horses had been loaded loose in one car. The plaintiff, himself, testified that the dead horses were badly trampled about the head and neck. .The veterinary testified that the bruises and wounds upon them resulted from being trampled upon by another horse; that they were trampled upon while alive. Another witness testified that the dead horses looked as if they had been pounded and trampled to death. There was no other evidence as to the cause of the death. So far as appears, the death resulted from the plaintiff putting too many horses in one car, or from his leaving them loose in the car, or from some fright of the horses, or from their crowding upon one another; all of which events the plaintiff stipulated should be at his own risk.
In consequence of the above stipulations and evidence, the plaintiff" cannot recover unless he shows by evidence that the death of the two horses was in fact caused by the negligence or other fault of the defendant company. This he has so far failed to do. He suggests in argument that the horses were probably thrown down by some collision of cars, — or the too quick starting or stopping of the car, or by some other concussion. There is no evidence, however, of any such event.
The plaintiff further argues that in the absence of evidence upon this point, the causative fault of the defendant company should be presumed, for the reason that the defendant company as common carrier has the burden of proving affirmatively its freedom from such fault. It is well settled, however, that when the common law liability of a common carrier is limited by valid exclusionary stipulations and the loss apparently results from some cause excluded by the stipulations, the burden is then upon the shipper to affirmatively prove that, nevertheless, the loss or damage was in fact caused by the fault of the carrier. For the want of such evidence in this case the plaintiff must be nonsuited.
Plaintiff nonsuit.