violated by permitting the plaintiff to unload. It would be his act, and not that of the defendant, and he could not be heard to complain of the granting of his own request, or of the consequences of his own act.

A further question was raised upon the facts which occurred at Utica. The plaintiff's agent there requested the conductor to place his cars in a convenient position for unloading, which request was refused. With reference to that transaction the court was asked to charge that the defendant was not liable for any alleged failure or refusal to leave the cars containing the plaintiff's cattle at Utica. The court declined to charge in that form, but left it to the jury to say whether it was reasonable to make the request at Utica, and that the defendant was bound to grant the request so far as to haul the cars where plaintiff could unload them, if there was good reason to believe there was danger in going on. And in that connec

tion the learned judge further charged, upon the request of de fendant's counsel, that if the jury should believe that the conductor of the train, when at Utica, had reason to believe that he could run the train through to West Albany with serious detention, then the company would not be liable by reason of a refusal to leave the cars containing plaintiff's cattle at Utica, or to permit the plaintiff to unload the cattle there. These two instructions of the charge were sufficiently favorable to the defendant, and were entirely correct. Taken together they left it to the jury to find negligence in the refusal at Utica only in the event that the conductor had not reason to believe that he could successfully run the train through the high water of which he had been warned. If he had no such reason then his refusal to allow the cattle to be unloaded at Utica, and to insist upon running them into danger would certainly be negligence. The charge was not erroneous in this respect.

An objection is taken that as to three of the cars no request was made, and damages to the cattle conveyed in them ought not to have been recovered. No trace of this objection appears in the history of the trial. No such question was there raised. It appears here for the first time, and is in truth only a criticism upon the language of the witnesses. The case was tried and disposed of on the assumption that the request related to all the cars. A suggestion at the trial that it did not would have directed attention to the point and enabled the plaintiff to put it beyond question if he did not acknowledge its truth. The language of the witness did at first relate to the five cars, but afterward covered them generally. He had a despatch from the owner to unload the cattle and told the conductor so. The latter was in no sense or respect misled as to what was requested, and we cannot now permit the question to be raised.

The final objection argued is that the whole injury was from delay, and that was released by the contract under which the cattle

were shipped. But that is not the view taken by us on the previous appeal, or justified by our present examination of the case. There was no recovery for delay. That was not the cause of the injury. If the cattle had been fed and watered no cause of action would have existed. It is because they were not, through the sole fault of the defendant, that the injury occurred, and the damages were recovered.

The case was carefully tried, and great care was exercised to present the case to the jury in accordance with our views on the previous appeal. We do not think any error was committed which renders it our duty to grant a new trial.

The judgment should be affirmed with costs.

All concur, except FOLGER, Ch. J., and EARL, J., dissenting, and RAPALLO, J., absent at argument.

Judgment affirmed.

A common carrier of goods or cattle is only bound to carry in a reasonable time under ordinary circumstances, and is not bound to use extra efforts or incur extra expense in order to surmount obstructions caused by the act of God, as a fall of snow. Briddon v. Great Northern Ry. Co., 28 L. J. Exch. 51; 32 L. T. 94.

It may be stated in general terms that a carrier is not liable for loss of freight, when such loss is occasioned by an unexpected flood, and no negligence is shown in the performance of his duties. Nashville, etc., R. R. Co. v. Ďavid, 6 Heisk. 261; Nashville, etc., R. R. Co. v. King, 6 Heisk. 269; Nashville, etc. R. R. Co. v. Jackson, 6 Heisk. 271; Railroad Co. v. Reeves, 10 Wall. 176; Read v. Spaulding, 30 N. Y. 630; Wallace v. Clayton, 42 Ga. 443; Denny v. N. Y., etc., R. R. Co., 13 Gray, 481; Lipford v. Charlotte, etc., R. R. Co., 7 Rich. 409.

Nor by action of the weather. Swetland v. Boston, etc., R. R. Co., 102 Mass. 276; Curtis v. Chicago, etc., R. R. Co., 18 Wis. 312; Ballentine v. North Missouri R. R. Co., 40 Mo., 491.

But where perishable articles were frozen by reason of an unusual intensity of cold, the fact that the carrier had done what is usual is not sufficient to exempt him from a charge of negligence. Wing v. N. Y., etc., R. R. Co., 1 Hilton, 235.

A carrier is liable if the injury to freight is the result of any negligence on his part. Charleston, etc., S. B. Co. v. Bason, 1 Harper, 262; Campbell v. Morse, 1 Harper, 468; Davis . Garrett, 6 Bing. 716; Willoughby v. Horridge, 12 C. B. 742; Powers v. Davenport, 7 Blackf. 497; Combe v. London, etc., Ry. Co., 31 L. T. N. S. 613; Lawrence v. McGregor, Wright, 193; Myer v. Chicago, etc., R. R. Co., 24 Wis. 566; Wing v. N. Y., etc., R. R. Co., 1 Hilton, 235; Wolf v. American Express Co., 43 Mo. 421; Reed v. Phila., etc., R. R. Co., 3 Houston, 176; Truax v. Phila., etc., R. R. Co., 3 Houston, 233; Bell v. Reed, 4 Binney, 127; Crosby v. Fitch, 12 Conn. 410; Powers v. Davenport, 7 Blackf. 497; Express Co. v. Kountz, 8 Wall. 342; Williams v. Grant, 1 Conn. 487; The Delaware, 14 Wall. 579; Cox v. London, etc., Ry. Co., 3 F. & F. 77. Still if the neglect was not one which ordinary foresight or sagacity could have apprehended, the carrier will not be liable. Morrison v. Davis, 20 Pa. St. 171; Memphis, etc., R. R. Co. v. Reeves, 10 Wall. 176; Denny . N. Y., etc., R. R. Co., 13 Gray, 481; Wolf v. Amer. Express Co., 43 Mo. 421; Taylor v. Great Northern Ry. Co., 1 L. R. C. P. 385; Nugento. Smith, 1 L. R. C. P. Div. 423; Pennsylvania R.R. Co. v. Fries, 87 Pa. St.234.

If he can show that either the act of nature or the defect of the thing itself, or both taken together, formed the sole direct and irresistible cause of the loss, he is discharged. Nugent v. Smith, 1 L. R. C. P. Div. 423.

Common carriers by water were conveyancing goods for hire in a boat towed by one of their steam-packets. As the steam-packet approached a pier to take in passengers, the captain of the packet stopped its course, in order to allow another vessel to clear away from the pier. This was a proper course on the part of the captain, but the day being boisterous and the tide running strong, with a good deal of sea, though there was nothing unusual in the weather, the effect of the stopping was that the towboat was driven by the wind and the tide against the rudder of the steam-packet, so that it was injured and the goods damaged. There was no negligence on the part of anyone. Held, that though there was no negligence, the carriers were liable to indemnify the owner of the goods for the damage caused by the accident, since it could not be said to be imputable immediately to the act of God, for the proximate cause of the injury was the stoppage of the steam-packet. Oakley v. Port of Portsmouth, etc., Co., 11 Exch. 618; see also The Lords Bailiff-Jurats, etc. v. Corporation, etc., L. R., 5 Exch. 204.

Where a company received freight which it delayed to forward, while the goods were in the company's warehouse they were injured by a flood. The company were held liable. Michaels v. N. Y., etc., R.R. Co., 30 N. Y. 564; Read v. Spaulding, 30 N. Y. 630; see also Bostwick v. Baltimore, etc., R. R. Co., 45 N. Y. 712; Condict v. Grand Trunk R.R. Co., 54 N. Y. 500; Dunson v. N. Y., etc., R. R. Co., 3 Lansing, 265; Read v. Railroad, 60 Mo. 199; Pruitt v. Railroad, 62 Mo. 527; Michigan, etc., R. R. Co., 80 Ill. 324.

The fact that an owner of live stock is allowed to pass upon the same train, in order to keep some lookout for its safety, will not lessen the responsibility of the carrier. Clarke v. Rochester, etc., R. R. Co., 14 N. Y. 570; Dunn v. Hannibal, etc., R. R. Co., 68 Mo. 268.

A carrier is bound to properly load live stock. Thus if he permits the owner to place dry straw in the car which is ignited by sparks from the locomotive, the carrier is liable. Powell v. Pennsylvania, etc., R. R. Co., 32 Pa. St. 414.

The carrier is responsible for injury to live stock from want of food and water, and the owner is not bound to insist on removing the stock from a car, either to give them food and water, or for greater security, during an extraordinary delay, if the servants of the company object. Harris v. Northern Indiana R. R. Co., 20 N. Y. 232.

A carrier is responsible for the safe treatment of animals, from the moment they receive the animals until the car is unloaded. Moffatt v. Great Western Ry. Co., 15 L. T. N. S. 630; Stuart v. Crawley, 2 Stark. 323; Richardson v. North Eastern Ry. Co., 7 L. R. C. P. 75; Willoughby v. Horridge, 12 C. B. 742; Combe v. London, etc., R. R. Co., 31 L. T. N. S. 613. But where the injury is caused by the action of the animal, and there is no negligence on the part of the carrier, he will not be liable. Great Western Ry. Co. v. Blower, 7 L. R. C. P. 655; Nugent v. Smith, 1 L. R. C. P. Div. 423; Kendall v. Railway, L. R. 7 Exch. 373; Penn v. Buffalo, etc., R. R. Co., 49 N. Y. 204; Smith v. New Haven, etc., R. R. Co., 12 Allen, 531; Michigan, etc., R. R. Co. v. McDonough, 21 Mich. 165; Bissell v. N. Y., etc., R. R. Co., 25 N. Y. 442; Clarke v. Rochester, etc., R. R. Co., 14 N. Y. 570; Cragin v. N. Y., etc., R. R. Co., 51 N. Y. 61. The carrier must furnish proper and safe cars. Great Western R. R. Co. v. Hawkins, 18 Mich.; Harris v. Northern Indiana R. R. Co., 20 N. Y. 232; McDaniel v. Chicago, etc., R. R. Co., 24 Iowa, 412; Illinois, etc., R. R. Co. v. Hall, 58 Ill. 409; Smith v. New Haven, etc., R. R. Co., 12 Allen, 531; Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180; Bamberg v. South Carolina R. R. Co., 9 S. C. 61.

The question, what was the cause of the injury, is one of fact for the jury.

Hall v. Renfro, 3 Met. (Ky.), 51; Great Western Ry. Co. v. Bloson, 20 W. R. 776.

MAHAR WIGTON and others

v.

EDWIN BOWLEY and another.

(130 Massachusetts Reports, 252. Jan. 17, 1881).

A. ordered of B. a car-load of flour at an agreed price delivered on board the cars, authorized B. to draw upon him for the amount at ten days' sight, and gave references as to his pecuniary ability. B. made inquiries of the persons named, placed the flour on board the cars of a railroad company, directed to A., taking a receipt in which A. was named as consignee, and sent a draft for the amount with the receipt to a bank for collection, with directions to deliver the receipt to A. on his accepting the draft. The draft was not accepted, and was returned to B. with the receipt. Held, in an action by B. for the conversion of the flour against a person who purchased it from A. in good faith, and who obtained possession of it, that these facts would warrant a finding that the property in the flour passed to A. when it was delivered to the railroad company for transportation; and, on such finding, that the action could not be maintained. TORT for the conversion of 112 barrels of flour. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon agreed facts, in substance as follows:

The plaintiffs are proprietors of flouring mills in Hart, Michigan; and, on October 18, 1878, they received from Henry Fenno, who was then doing business in Boston, a letter asking for the price per car-load of their flour delivered on board the cars. On October 28, the plaintiffs sent to Fenno the figures requested; and, on October 31, Fenno ordered of the plaintiffs a car-load of the flour at the price named, authorized them to draw on him for the amount at ten days' sight, and referred them to persons with whom he had dealt. The plaintiffs, having obtained satisfactory information from the persons indicated as to Fenno's pecuniary standing, on November 13, 1878, loaded a car with the flour ordered, directed and consigned to Fenno at Boston; and, at the same time, they drew on Fenno as directed. The draft and the bill of lading for the flour, in which Fenno was named as consignee, were sent to a bank in Boston, with the instruction to deliver the bill of lading to Fenno, if the draft was accepted. The draft was never accepted, and the bill of lading was never delivered. There is no evidence to show that it was ever presented to Fenno for acceptance.

On December 5, 1878, Fenno executed to the defendants an order on the freight agent of the Boston and Albany R. R. Co. to deliver to the defendants the flour in question; and the defendants

paid the full purchase price of the flour to Fenno. The defendants presented the order to the freight agent of said company, and he delivered the flour to them, according to the usage of that and other railroad corporations, without exacting the production of the bill of lading. On December 9, 1878, the bill of lading and the draft were returned to the plaintiffs by the bank. The flour so delivered to the defendants is the same flour which the plaintiffs had consigned to Fenno. The plaintiffs have never received anything in payment or part payment thereof. Fenno failed immediately after he executed the order to the defendants, and his testimony cannot be procured by either party.

If, upon the above facts and such inferences as a jury would be authorized to draw, the plaintiffs were entitled to recover, judgment was to be entered for them for $518.56, and interest from the date of the writ; otherwise, judgment for the defend

ants.

F. W. Griffin & S. T. Harris, for the plaintiffs.

H. Carter, for the defendants.

COLT, J.-Upon the agreed facts, the court below was justified in finding that the property in the flour was transferred to Fenno, the purchaser, when it was delivered for transportation to the railroad company in Michigan.

It appears that Fenno, having obtained from the plaintiffs the price asked for their flour delivered on board the cars, ordered a car load at the price named, and authorized the plaintiffs to draw on him for the amount at ten days' sight, at the same time giving references to other parties as to his pecuniary standing. The plaintiffs took time to satisfy themselves as to his responsibility, and then delivered the flour on board the cars, directed to Fenno at Boston, and consigned to him. The receipt given by the railroad, sometimes called the shipping receipt or bill of lading, was taken in his name. These facts sufficiently show that the plaintiffs did not intend to retain their hold on the property, after it was taken by the carrier, as security for the payment of the price.

In the sale of specific chattels, an unconditional delivery to the buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, is sufficient to pass the title, if there is nothing to control the effect of it. If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer the property to the vendee. Merchants' National Bank v. Bangs, 102 Mass. 291. If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that intention at the time of their delivery to