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East Tennessee, Virginia and Georgia Railroad Company v. Johnston.

able in the provision of the contract, by which the owner assumed to load, transfer and unload. For any injury caused by over, or other improper loading, the defendant is not liable, if without fault or negligence on its part. Squire v. N. Y. Cent. R. Co., 98 Mass. 239; Kimball v. Rut. & Burl. R. Co., 26 Vt., supra.

A carrier cannot, by contract, relieve himself of the degree of care and diligence exacted by the common law. Any want of such care and diligence is negligence. He can exempt himself only from liability for loss or injury, not caused by his own or his servant's negligence. The clause of the contract exempting the defendant "from all other damages incidental to railroad or steamboat transportation, which shall not be established to have been caused by the gross negligence or delinquency of any of the officers or agents of the said railroad or steamboat companies," is unreasonable, and cannot be maintained. The exception relieves the defendant of all negligence less than gross. An injury having occurred, the onus of proof is on the defendant to show, not only that the cause is within the exception, but that it was without negligence on the part of the defendant. S. & N. Ala. R. Co. v. Henlien, 52 Ala. 606; s. c., 23 Am. Rep. 578; Steele v. Townsend, 37 Ala. 247.

A carrier owes equal duty to all persons who choose to employ him to transport freight. He is under no obligation to give one a preference over others. In making up a train, large discretion must necessarily be allowed the company in assigning cars to different positions. It is nevertheless the duty of the carrier to assign a car, loaded with freight of a particular nature, such position, so far as may be consistent with the safety and interests of other shippers, as will cause the least exposure to danger-not of shippers exclusively of the same kind of freight, but having reference to the nature and character of all kinds and classes of freight being transported. Although the defendant might have, consistently with its duty to other shippers, placed the car at a greater distance from the engine, if the injury was not caused by its proximity thereto, the defendant is not liable for such injury, if there was no negligence on its part causing the loss. There does not appear to be any evidence on which to predicate the first instruction given at the request of the plaintiff, and for this reason the charge should have been refused; but under our rulings, giving an abstract charge, if it asserts a correct legal proposition, is not a reversible error.

The cattle were consigned to New Orleans. The measure of

East Tennessee, Virginia and Georgia Railroad Company v. Johnston. damages is the market value of the cattle at the place of destination, less the expense of transportation, although the defendant was not liable for any injury occurring beyond the terminus of its road. S. & N. Ala. R. Co. v. Wood, 72 Ala. 451.

Reversed and remanded.

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▲ land-owner, engaged in whitewashing a fence skirting a highway running through his land, used a small barrel, mounted on wheels. This with a shovel projecting slightly above the top was left at the side of the highway over Sunday. The plaintiff's horse took fright at it, and caused personal in. juries to him. Held, that the defendant was not liable unless the vehicle was so unusual and extraordinary as to have a natural tendency to frighten horses of ordinary gentleness and training, and was left by the roadside an unreasonable length of time.*

An expert may give an opinion whether a horse died of fright or of disease.

A

CTION for personal injuries by negligence. The opinion states the case. The plaintiff had judgment below.

W. T. Davies, Williams, Angle, and Ellsbree & Son, for plaintiff in error.

Rodney A. Mercur, John F. Sanderson andl Edward Overton, Jr., for defendant in error.

* See Macomber v. Nichols (34 Mich. 212), 22 Am. Rep. 522, and note, 528.

Piollet v. Simmers.

GREEN, J. The injury for which the present action was brought was occasioned in a peculiar and unusual manner. The plaintiff and another were riding in a carriage along a public road, in the open country, at about eight o'clock in the evening of a day in the month of July, when suddenly the horse drawing the carriage reared, plunged a few steps forward, fell to the ground on the side of the road, and instantly died. In falling he upset the carriage, which fell upon the plaintiff and caused the injuries for which the suit is brought. The falling and death of the horse caused the overthrow of the carriage; but what was it caused the falling and death of the horse? This is perhaps the true problem of the controversy, but the cause does not seem to have been tried with much reference to its solution. There was an object standing by the side of the road, and quite near to the beaten track, at the place where the horse fell, and it seems to have been assumed that the horse took fright at the sight of this object, and this caused him to rear and fall and die. But this is an unsatisfactory theory. We do not know whether horses ever die from mere fright. No evidence on the subject was received. Some testimony was offered by the defendants, to the effect that the horse could not have died of fright, and that his death was due to some other cause; but it was rejected by the learned court below, and that rejection constitutes the substance of several assignments of error. No post-mortem examination of the horse was made, and the cause of justice was thus deprived of what might have proved to be a most important aid in the determination of the catastrophe. No experts in farriery were examined. No veterinary or other medical authorities were invoked, and the case is really barren of testimony from which a satisfactory theory of the animal's death may be derived. It is notorious that horses, like human beings, die suddenly, and of similar diseases. Indeed one of the medical witnesses testified to that effect in this case. If there were facts which indicated that this horse died from some sudden attack of disease, or opinions of intelligent witnesses to that effect, based upon facts observed by themselves, we think they should have been received in evidence. We think that both the witnesses, Dougherty and Ferguson, gave evidence which sufficiently qualified them to answer the questions proposed to them, but which were rejected. Dougherty had had much experience with horses for twenty years, had owned quite a number, owned five at the time he was examined; he had seen this horse shortly before his death, the same VOL. LI-63

Piollet v. Simmers.

afternoon, and had observed and described his condition, saw him immediately after his death, saw the object which was supposed to have frightened the horse, and testified as to whether it was calculated to frighten horses. In view of all this we think the question proposed to be put to him should have been allowed, the first one for the reasons above indicated, and the second for the reason herefter stated. Ferguson was a blacksmith, had shod horses of many different kinds for over fifty years; had always handled horses "since he was big enough;" had seen horses frightened frequently; it was offered to prove by him that he had seen horses fall, and thrown to the ground many times, and then to inquire whether the mere fall of this horse could have killed him, having reference to the ground where he fell, the witness having seen it. We think he was sufficiently qualified to answer this question, and his opinion should have been received, and also on the subject whether a horse could have been frightened to death by the object at which this horse was supposed to have taken fright. Had the horse run away, and in that manner upset the carriage, there would have been more force in the objections to this testimony. But such was not the fact. He died instantly, and the cause which produced his death probably occasioned his fall, and it was his fall that upset the carriage. Now the actual physical fact or condition, which produced his death, cannot be known, and the moral condition, so to speak, is a mere matter of theory which requires illustration by the opinions of persons having experience in such matters. For these reasons we sustain the fourth, seventh and eighth assignments of error.

Another question arose on the trial which is presented in several assignments. It relates to the character and qualities of the horse against whose fright precautions are required. It was contended by the defendant that the animal should be an ordinarily quiet and well-broken horse. This was denied by the plaintiff, who contended that an object should be such as would not frighten any kind of horses, whether quiet and well-broken, or skittish and shy. The court adopted the latter view, and refused to allow the defendants to inquire whether the object in this case was calculated to frighten an ordinarily quiet and well-broken horse, or an ordinarily well-broken and road-worthy horse. The same idea was embodied in the answers to points, and in the general charge, where the thought was expressed in the more comprehensive form that if the object was calculated to frighten horses, without any qualification

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