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But if the shipper freely and voluntarily chooses not to rely upon this absolute duty to furnish suitable vehicles, and takes upon himself for a sufficient consideration, in the form of a reduced rate or otherwise, the duty of selecting vehicles which are suitable for the goods he intends to have carried, he cannot hold the carrier liable for injuries arising from such patent defects as he ought to have discovered in his examination of the vehicles. 43 But as to those defects which are not such that an ordinary inspection by the shipper would bring them to his attention, and yet which are such that a reasonably careful inspection by a person experienced in such business would lead to their detection, an inspection and acceptance of the vehicle by the shipper will not save the carrier harmless from damages due to such defects unless it can be shown that they were actually pointed out to the shipper, and that he accepted

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business, and he is liable for an the cars are bedded, and accepts injury resulting therefrom, not the same, expressing his satisfacwithstanding the shipper is aware tion therewith, the carrier will of the defect." Paddock v. Railway not be liable for alleged failure to Co., 60 Mo. App. 328.

properly bed the cars. Railroad v. 43. Frolich Glass Co. v. Rail- O'Loughlin (Tex. Civ. App.), 72 S. road, Mich. 101 N. W. W. Rep. 610. Rep. 223; Williams V. Railway A selection of unsuitable cars Co., 117 Ga. 830, 43 S. E. Rep. by the consignor will be binding 980; Railway Co. v. James, 117 on the consignee. Frolich Glass Ga. 832, 45 S. E. Rep. 223; Rags- Co. v. Railroad Co., Mich. dale, Harper & Weathers v. Rail. 101 N. W. Rep. 223. way Co., 119 Ga. 627, 46 S. E. Rep. 44. Leonard Whitcomb, 95 832; Densmore Commission Co. v. Wis. 646, 70 N. W. Rep. 817; RallRailway Co., 101 Wis. 563, 77 N. way Co. v. James, 117 Ga. 832, W. Rep. 904.

45 S. E. Rep. 223; Railroad Co. v. Where a shipper ordered a car Davis, 159 Ill. 53, 42 N. E. Rep. for stock too late for the carrier 382, 50 Am. St. Rep. 143, affirming to get it to him on time with due 54 Ill. App. 130; Railroad Co. v. diligence on its part, and the ship- Holland, 162 Ind. 406, 69 N. E. per thereupon elected to send the Rep. 138, 63 L. R. A. 948; Hunt stock in a box car, the carrier 0. Nutt, (Tex. Civ. App.) 27 S. W. was not liable for an injury to Rep. 1031. the stock shipped in such box car, If the defect relates to the comwhen it was willing to furnish a modiousness of the car, and the stock car on the next day. Huston possible effect of larger accommoV. Railroad Co., 63 Mo. App. 671. dations upon the particular ani.

If the shipper is present when mal to be carried, and the questhe vehicle with full knowledge of their existence.44 The burden of proof in a case of actual selection by the shipper is on the shipper to prove that a defect was not patent when he examined the vehicle. 45

Sec. 509. Carrier's duty in furnishing cars for live stock.A common carrier who undertakes to transport live stock is bound to furnish cars reasonably safe for that purpose. This does not mean that he has fulfilled his duty in that respect when he has supplied cars that will merely hold or confine the stock while being carried, but that such cars shall be reason. ably safe for transporting stock without injury from any causes that should be reasonably anticipated, considering the usual and ordinary propensities of the stock. It is to be expected that where animals are confined together in a car they are apt to crowd against the sides and, if horses or mules, it is not unusual for them to both kick and crowd. What would be a safe car for carrying one class of stock might not be for stock of another class. The carrier, therefore, in providing such cars, must see to it that they are constructed reasonably safe and sufficient to prevent injury, having in mind the ordinary habits of the animals delivered to him for transportation.46 But he is not bound to anticipate and protion is discussed between the ship Iowa, 343, 60 N. W. Rep. 623, 26 per and the carrier who informs L. R. A. 248, 54 Am. St. Rep. 558; the shipper that a more commo- Leonard 1. Whitcomb, 95 Wis. 646, dious car will be furnished if the 70 N. W. Rep. 817. shipper is willing to pay a larger The carrier is liable for a defecrate of freight, and such larger tive door. Root v. Railroad Co., rate is not unreasonable, and the 83 Hun, 111, 31 N. Y. Supp. 357, shipper decides to take the cheap. 8. C. 76 Hun, 23, 27 N. Y. Supp). er car, and he himself attempts €11. to guard against the want of room, The carrier is liable for defecit may be assumed from such facts tive slats. Railway Co. v. Rainey, that the shipper assumes the risks 19 Colo. 225, 34 Pac. Rep. 986. But incident to such want of room. not when car is actually selected Coupland v. Railroad Co., 61 Conn. by shipper. Williams v. Railway 531, 23 Atl. Rep. 870, 15 L. R. A. Co., 117 Ga. 830, 43 S. E. Rep. 534.

980. 45. Williams v. Railway Co., 117 The carrier is liable if the sides Ga. 830, 43 S. E. Rep. 980.

of a car are so constructed that a 46. Betts Railway Co., 92 slight kick from a horse or mule

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vide for animals that may be extraordinarily unruly and vicious. 47

If the carrier furnishes cars which are affected with any contagious disease, the shipper may recover such damages as he sustains.48 But if the shipper contracts to provide stalls, and the stalls furnished by him prove insufficient,49 or if he contracts to furnish bedding, and the bedding furnished is defective,50 he cannot recover damages from the carrier for consequent injuries to the animals.

Sec. 510. ($ 295d.) Same subject—Stational facilitiesCattle-yards.—The duty of the carrier extends also to the providing of proper and reasonable stational facilities, such as platforms, warehouses, approaches, and the like.31 And in the case of a carrier of live stock, it includes the furnishing of proper yards, pens, gates and other appliances necessary to enable the stock to be received, loaded, unloaded, and delivered to the consignee.52 In providing pens at any point, how

would break them. Betts v. Rail- ute in Texas. Railway Co. o. way Co., suyra.

Trammel, 28 Tex. Civ. App. 312, The carrier is liable for defec- 68 S. W. Rep. 716. tive bedding. Railroad Co.

The failure of a carrier to keep O'Loughlin, (Tex. Civ. App.) 84 an agent or employe at a "counS. W. Rep. 1104.

try or plantation switch” for the 47. Selby V. Railroad Co., 113 purpose of receiving or guarding N. C. 588, 18 S. E. Rep. 88, 37 Am. freight, or to keep fire apparatus St. Rep. 635.

there is not negligence when such 48. Railroad Co. v. Harris, 184 switch is maintained merely for III. 57, 56 N. E. Rep. 316, 48 L. R. the convenience of planters who A. 175, affirming 84 Ill. App. 462; are thereby saved the expense of Bradford v. Railway Co., 64 Mo. carting their cotton some miles to App. 475.

a regular station and where the 49. New England, etc. Steam- risk seems to have been acceptship Co. v. Paige, 108 Ga. 296, ed as a consideration for the con33 S. E. Rep. 969.

venience afforded. Charnock v. 50. Gilleland & Dillingham 0. Railway Co., 194 U. S. 432, 24 Railroad Co., 119 Ga. 789, 47 S. E. Sup. Ct. R. 671, affirming 113 Fed. Rep. 336.

92, 51 C. C. A. 78. 51. Mason V. Railway Co., 25 52. Covington Stock Yards v. Mo. App. 473. See also post, in Keith, 139 U. S. 128; McCullough the case of passenger carriers, v. Railway Co., 34 Mo. App. 23; § 928 et seq.

Lackland v. Railway Co., 101 Mo. This duty is imposed by stat- App. 420, 74 S. W. Rep. 505; Chinn

ever, the carrier is only required to anticipate and make reasonable provision for the volume of live stock business which he ordinarily and usually transacts at such point.53 It is also his duty to keep the pens so furnished by him in a suitable condition for the purpose for which they are intended.54 Thus if he should permit the pens to become so out of repair that the live stock placed within them break out and are injured, he will be liable to the shipper for such injury. And where lambs were placed in stock pens, and the carrier negligently permitted salt water to flow into the pens, the carrier was held liable in damages for injuries resulting from the lambs drinking the salt water, although such injuries did not develop until after the lambs had passed into the possession of a connecting carrier.56

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V. Railway Co., 100 Mo. App. 576, lý agreed, the carrier is bound to 75 S. W. Rep. 375; Railway Co. unload the animals although at V. Farnbrough, (Tex. Civ. App.) owner's risk. The custom of the 55 S. W. Rep. 188; Railway Co. carrier's agent at destination to v. Trammel, 28 Tex. Civ. App. 312, require the consignee or owner to 68 S. W. Rep. 716.

unload live-stock, although known Irrespective of a contract limit to the owner, cannot affect the ing liability in the carriage of contract. Benson Gray, 154 live stock if the owner of the Mass. 391, 28 N. E. Rep. 275, 13 stock undertakes to unload it at L. R. A. 262. such a time that the carrier or its 53. Casey v. Railway Co., (Tex. servants may have no notice of Civ. App.) 83 S. W. Rep. 20. what he is doing, and the stock 54. Texas, etc. Ry. Co. v. Felis injured by breaking through a ker, Tex. Civ. App.

90 chute that is old and rotten and S. W. Rep. 530; Railway Co. v. was selected by the shipper him. Dunman, (Tex. Civ. App.) 81 S. self, the carrier having no knowl- W. Rep. 789. edge of its intended use, no Whether the pens were suitable covery may be had against the is a question of fact for the jury. carrier. Candee V. Railroad, 73 Lackland v. Railway Co., 101 Mo. Conn. 667, 49 Atl. Rep. 17.

App. 420, 74 S. W. Rep. 505. Under a contract for the trans- 55. Cooke v. Railroad Co., 57 portation and delivery of live Mo. App. 471; Tracy v. Railroad stock, providing that live animals Co., 80 Mo. App. 389. will only be taken at owner's risk 56. Railroad Co. v. Harman, 91 of injury "during the course of Va. 601, 22 S. E. Rep. 490, 44 L. transportation, loading and un- R. A. 289, 50 Am. St. Rep. 855. loading," unless otherwise special

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Sec. 511. (§ 296.) Duty of carrier to accept goods for carriage.—Being provided with the facilities for the transportation of goods of the character which he proposes to carry, and to which his means of conveyance are adapted, the carrier is under a legal obligation to receive all such goods as may be offered to him for carriage, provided they are offered at such place as he may appoint, or at which freight is customarily delivered to and accepted by him, unless, as we have seen, an unusual influx of business has made their present transportation impossible, or, as it is sometimes expressed, unless his coach be full; or unless they are offered at an unreasonable time, or at a time unreasonably long before that fixed for his departure; or the property by such delivery would be exposed to danger; or be of a dangerous character, or the carrier has reason so to believe, and the shipper refuses to disclose their true character;57 or where, either from the condition of the goods themselves, or the manner in which they are packed or otherwise protected or secured, they are in an unfit state to bear the necessary transportation.

Sec. 512. (§ 297.) He must carry for all alike and cannot show preferences.—In all such exceptional cases, the carrier may refuse, if he will, to accept; and the law will excuse him for so doing. 58 But if he refuse, without some legal reason for so doing, to accept for carriage the goods, being such as he is accustomed to carry, of any person who is ready and willing to pay him his price for the carriage, he becomes liable to an action for damages for so doing. And not only is he, obliged to receive and carry such goods, but he is required to carry for all his employers alike. He can show no favors, nor make distinctions which will give one employer an advantage over another, either in the time or order of shipment, or in the distance of the carriage, or in the conveniences or accommodations which may be afforded.59 “Common carriers are bound 57. The Nitro-Glycerine Case, 15 Evans v. Railroad Co.,

Ky. . Wall. 524.

90 S. W. Rep. 588. 58. Ante, 8 144, et seq.

In Memphis News Pub. Co. v. 59. State v. Railroad Co., Railway Co., 110 Tenn. 684, 75 Neb.

101 N. W. Rep. 23; S. W. Rep. 941, 63 L. R. A. 150,

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