the wire, raised up his front foot, and got caught in the wire, and was completely ruined. When I started over there, I saw that they pushed the fence over and against my colt, and that mine, in fighting back, got onto the wires." From the fact that upon the cross-examination of Arp it appeared that his horse caught its foot in the top wire of the fence, this court assumed that the horse was trying to jump the fence, and that such attempt was the proximate cause of the injury. Even if the court was right in that assumption, it is clear that such attempt was the natural and probable result of the presence of the other horses across the fence and of their actions. Their presence and activities there were the dominant cause of the action of Arp's horse, and therefore of the "In injury. In that case the court said: the case at bar the injury resulting to defendant's colt could not have been anticipated by the plaintiff in permitting his colts to remain in the highway adjoining defendant's land." We do not think that statement correctly expresses the rule. We think the rule is not whether the party could have anticipated the particular accident that happened. In the note to that case in 130 Am. St. Rep. on page 747, the author concisely states this rule, which is fully sustained by the authorities cited: "The proximate cause of an injury is that which in a natural and continuous sequence, unbroken by any new independent cause, produces the injury, without which the injury would not have occurred. It is not necessary to show that the wrongdoer ought to have anticipated the particular injury which did result; it is sufficient to show that he ought to have anticipated that some injury was likely to result as the reasonable and natural consequence of his negligence." See also 29 Cyc. 499. We It seems to us that the entanglement of the Arp horse in the fence, and the entanglement of the present plaintiff's horse in the fence, were not the result of "any new, independent cause," but that each was the result of the presence and activities of the other fellow's horses across the fence. are of the opinion that in allowing his horses to get upon the plaintiff's land the defendant in the case at bar should have anticipated, and must be held to have anticipated, that some injury to his or plaintiff's horses, or both, was likely to happen, and therefore that he should be held responsible for the act which did happen because of the trespass of his animals, it being a natural and reasonable result thereof. The judgment and order appealed from are reversed, and a new trial granted. MINNESOTA SUPREME COURT. NORTHWESTERN MARBLE & TILE COMPANY, Appt., V. JOSEPH WILLIAMS, Respt. (128 Minn. 514, 151 N. W. 419.) Appeal waiver of new trial. 1. If, after verdict, the unsuccessful party moves for judgment notwithstanding the verdict, but does not move in the alternative for a new trial, he cannot on appeal be awarded a new trial. By resting solely upon his motion for judgment, he waives all errors which would be ground only for a new trial. Carrier injury to freight liability. 2. A common carrier is at common law an insurer of the goods shipped, and is responsible for all losses except those arising One excepted from certain excepted causes. cause is improper packing by the shipper. The rules applicable to contributory negli do not apply to such a case. rier must, to relieve himself from liability, show that the fault of the shipper was the sole cause of the loss. gence The car refusal. improper packing 3. If improper packing is apparent to the carrier or his servants, then the carrier may refuse to receive the shipment. If he does receive the shipment, he assumes to carry the goods as they are, and the full common-law liability as carrier attaches. Same assumption of risk. 4. Although the carrier has knowledge of the defective packing, yet, if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing. On this point the evidence in this case presents a question for the jury. (March 5, 1915.) Headnotes by HALLAM, J. Note.-Liability of carrier in respect of property which it accepts improperly packed or crated. For the earlier cases upon this question, see note to Atlantic Coast Line R. Co. v. Rice, 29 L.R.A. (N.S.) 1214. As to the effect of a shipper's negligence in loading a car, or as to the condition of the car, upon the carrier's common-law liability, see notes to Duncan v. Great Northern R. Co. 19 L.R.A. (N.S.) 952, and Illinois C. R. Co. v. Rogers, L.R.A.1915C, 1220. A shipper cannot recover for the loss of goods which is occasioned by reason of the goods being shipped in improper containers or packages, not because of any theory of contributory negligence, but because such facts form exceptions which abrogate the common-law liability of the carrier. Revilla A PPEAL by plaintiff from a judgment of would be proper to consider these assignthe District Court for Rice County, ments of error; but they are quite imdenying a motion for judgment notwith- material on this appeal. A party against standing a verdict for defendant in an ac- whom a verdict has been returned may move tion brought to recover damages for injuries in the alternative for a new trial or for to certain marble slabs while being trans-judgment notwithstanding the verdict. Gen. ferred by defendant from a railway station to destination. Affirmed. The facts are stated in the opinion. Stat. 1913, § 7998. When he moves only for judgment, and rests upon that motion alone, he cannot on appeal be awarded a new trial. He has waived all errors which would be ground only for a new trial. Bragg v. Chicago, M. & St. P. R. Co. 81 Minn. 130, Hallam, J., delivered the opinion of the 83 N. W. 511; Krumdick v. Chicago & N. court: W. R. Co. 90 Minn. 260, 95 N. W. 1122, 14 Plaintiff, a dealer in marble in Minne-Am. Neg. Rep. 589; Sallden v. Little Falls, apolis, shipped a number of marble slabs by 102 Minn. 358, 13 L.R.A. (N.S.) 790, 120 rail to the state school for the feeble- Am. St. Rep. 635, 113 N. W. 884; Helmer minded at Faribault. Defendant is in the v. Shevlin-Mathieu Lumber Co. Minn. transfer business at Faribault. He was en- 151 N. W. 421. Errors in the admission of gaged to haul the marble from the railway evidence or in the charge to the jury are station at Faribault to its destination. The of this sort. They present no ground for marble was packed in crates, and on the judgment notwithstanding the verdict. Final way some of the crates fell from the wagon judgment cannot be given to the defeated and several slabs were broken. Plaintiff party because the cause was erroneously sued for damages. The jury found for de- tried. Such party may, if he asks for it, fendant. Plaintiff moved for judgment not- be entitled to a new trial on this ground, withstanding the verdict, but did not ask but never to final judgment. The question for a new trial, and the court denied the before us is, not whether the case was propmotion. This appeal involves only the ques-erly tried, but whether there is any comtion of the correctness of this ruling. petent evidence reasonably tending to sus 1. Plaintiff assigns as error certain rul-tain the verdict. If so, the verdict must be ings of the court in the admission of evi- sustained. In determining that question, dence and in the charge to the jury. If every intendment will be indulged in favor plaintiff were asking for a new trial, it of the verdict, and judgment will only be Fish Products Co. v. American-Hawaiian | it was held that the shipper could not reS. S. Co. 77 Wash. 49, 137 Pac. 337. In Louisville, H. & St. L. R. Co. v. Southern Seating & Cabinet Co. 157 Ky. 772, 164 S. W. 90, an action for injury to opera chairs shipped over defendant's road, packed in crates, the court said that if goods are insufficiently packed, and this fact is not known to the carrier, nor discoverable by the exercise of ordinary care, it is not liable for loss or injury due to such insufficient packing, if itself free from negligence. The liability of a carrier as an insurer of goods does not extend to loss or damage arising from the negligence of the shipper, or from vices or defects inherent in the nature of the goods, and where, in an action for the loss of a puncheon of molasses that burst during transit, there was evidence on the part of the defendant tending to establish such conditions, defendant was entitled to have them considered by the jury under proper instructions. Currie v. Seaboard Air Line R. Co. 156 N. C. 432, 72 S. E. 493. Where a shipper did not comply with a regulation of the carrier that nitric acid carboys would not be accepted for transportation unless they were packed in noncombustible dunnage, and did not give notice to the carrier of the nature of the acid, and the shipment was destroyed by combustion due to the leaking of the acid, cover. Bradley v. Lake Shore & M. S. R. Co. 145 App. Div. 312, 129 N. Y. Supp. 1045. In Deake v. United States Exp. Co. 172 Mich. 451, 138 N. W. 196, which was an action for the loss of a bull calf shipped in a crate by plaintiff, due to the crate being too large, so that the calf was enabled to turn around partially and break the crate when he became excited and vicious during the trip, it was held that defendant was not negligent in accepting the calf so crated, where there was no defect in the crate other than its size, and plaintiff's testimony showed that, although he saw the calf get excited and try to turn around in the crate at the point of shipment, he did not think it was necessary to take any further precautions. In E. C. Fuller Co. v. Pennsylvania R. Co. 61 Misc. 599, 113 N. Y. Supp. 1001, which was an action for damage to machinery shipped over defendant's railroad, the court says it was essential to plaintiff's recovery to prove that the goods when delivered by plaintiff were in good condition and properly packed for transportation, but it does not appear clearly from the facts in the case whether the injury to the machinery was due to the way in which it was packed or in the way in which it was loaded on the car by plaintiff's employees. R. L. S. granted when the evidence is conclusive | circumstances impossible to be unraveled." against the verdict. Cruikshank v. St. Paul Arthur v. St. Paul & D. R. Co. 38 Minn. F. & M. Ins. Co. 75 Minn. 266, 77 N. W. 95, 100, 35 N. W. 721. It would be a dis958; Fohl v. Chicago & N. W. R. Co. 84 tinct extension of the doctrine of contribuMinn. 314, 87 N. W. 919; Marengo v. Great tory negligence to apply it to a case of this Northern R. Co. 84 Minn. 397, 87 Am. St. kind, and an extension which we believe to Rep. 369, 87 N. W. 1117; Fischer v. Sperl, be unwarranted. On proof of the contract 94 Minn. 421, 103 N. W. 502; Stebbins v. of carriage and of loss or damage, liability Martin, 121 Minn. 154, 140 N. W. 1029. is prima facie established. To relieve himself from liability, the carrier must prove that the loss or damage arose solely from one or more of the excepted causes, and it avails him not to show that the shipper was negligent, if the loss or damage would not have resulted except for the concurring fault of the carrier. The proof must bring the case "entirely and perfectly within the exception." This view is sustained by the weight of authority. McCarthy v. Louisville & N. R. Co. 102 Ala. 193, 48 Am. St. Rep. 29, 14 So. 370; Hutchinson, Carr. § 333; 1 Moore, Carr. 559; Elliott, Railroads, § 1492. 2. We address ourselves, therefore, to this question of the sufficiency of the evidence to sustain the verdict. Defendant was admittedly a common carrier of goods. A common carrier of goods in general insures the safe transportation of goods committed to him for that purpose, and he is responsible for all damage to the same while in transit, unless such damage is occasioned by certain excepted causes. These excepted causes are act of God, act of public enemy, the inherent quality or "proper vice" of the articles themselves, or some act or omission of the shipper or owner. Christenson v. American Exp. Co. 15 Minn. 270, Gil. 208, 2 Am. Rep. 122; Goodman v. Oregon & Nav. Co. 22 Or. 14, 28 Pac. 894. 3. It is admitted that defendant discovered that the condition of the crating was defective at the time the marble was loaded Defendant contends that this case comes on his wagon. It is claimed he thereby aswithin the last exception; that is, the con- sumed all the responsibility of carrying it tention is that the marble slabs were not in its defective condition. There is some properly packed or crated by the shipper, authority for the proposition that the full that when they were transferred to wagons duty of the carrier is simply to carry goods they were loaded in the proper and prac-in the condition offered, though the defect ticable way, and were braced in the usual in loading or packing is apparent, and that and proper way by means of boards running if in such case injury results from such from the top of the crates to the bottom of defective loading or packing the carrier is the wagon bed, but that they fell by reason relieved. Ross v. Troy & B. R. Co. 49 Vt. of the fact that the crating was worm- 364, 24 Am. Rep. 144. See Union Exp. Co. eaten, dozy, and decayed, so that it would v. Graham, 26 Ohio St. 595. The better and not properly hold the nails driven into it the more general rule seems to be that, if for that purpose. goods presented for carriage are not properly packed, and that fact is apparent to the carrier or his servants upon ordinary observation, then the carrier may refuse to receive the goods in that condition; but if he does see fit to receive them he assumes to carry them as they are, and his full common-law liability as carrier attaches to the contract of carriage. McCarthy v. Louis. ville & N. R. Co. supra; Elgin, J. & E. R. Co. v. Bates Mach. Co. 98 Ill. App. 311; Elgin, J. & E. R. Co. v. Bates Mach. Co. 200 Ill. 636, 93 Am. St. Rep. 218, 66 N. E. 326; The David & Caroline, 5 Blatchf. 266, Fed. Cas. No. 3,593; Klauber v. American Exp. Co. 21 Wis. 21, 91 Am. Dec. 452; Atlantic Coast Line R. Co. v. Rice, 169 Ala. 265, 29 L.R.A. (N.S.) 1214, 52 So. 918, Ann. Cas. 1912B, 389; Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. ed. 423; 1 Moore, Carr. 559. The general rule is that, where the shipper packs articles for shipment, he cannot recover from the carrier for injuries due to improper packing. Hutchinson Carr. § 233; Shriver v. Sioux City & St. P. R. Co. 24 Minn. 506, 31 Am. Rep. 353. Some authorities apply here the rules of contributory negligence, and hold that if the bad packing contributes in any measure to the loss or injury the carrier is not liable. 5 Thomp. Neg. § 6465. See Reed v. Philadelphia, W. & B. R. Co. 3 Houst. (Del.) 176, 212; Ross v. Troy & B. R. Co. 49 Vt. 364, 24 Am. Rep. 144. It appears to us that the rules of contributory negligence have no application to such a case. Contributory negligence of plaintiff is a defense only in cases where the action is founded on negligence of defendant. Here the action is not founded on negligence of the carrier at all. The carrier's common-law liability is founded, not on negligence, but "on broad principles of public policy and convenience, and was introduced to prevent the necessity of going into 4. It cannot be said, however, that the carrier must, at his peril, know that the goods are not in fact safely packed. The shipper usually knows better than the car-, rier the manner in which the goods have been packed and the manner in which they should be packed, and even though the carrier may have knowledge of some defect in the packing, still if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing. See Jaggard, Torts, 1064; McCarthy v. Louisville & N. R. Co. supra. It is right here that we think the evidence in this case presents a question of fact for the jury to determine whether it was manifest to the defendant that the marble could not be carried with safety in the manner in which it was crated. The motion for judgment was therefore properly denied, and the judgment is af firmed. Holt, J., took no part. water into a cellar on one side of the street from a pond on the opposite side, because of the disturbance of the earth by the blasts. (April 1, 1915.) XCEPTIONS by plaintiff to rulings of the Superior Court for Middlesex County made during the trial of an action brought to recover damages for alleged negligent injury to plaintiff's house by water, which resulted in a verdict for defendant. Judgment for defendant. Statement by De Courcy, J.: The plaintiff's house was on the easterly side of Maple street, and about 5 feet from the street line. On the opposite side of the street, and about 200 feet in a northwesterly direction from this house, was a natural depression of the ground. Here the surface water from the surrounding territory collected at certain times of the year and formed a pool or pond that was about 100 feet long, 30 feet wide and 2 feet deep. The bottom of the pond was always moist and muddy, and never was cultivated. All MASSACHUSETTS SUPREME JUDI- the water that did not overflow into the HOWARD CIAL COURT. D. MACGINNIS, Otherwise Known as Howard D. McGennies, There are some cases upon the border line of the subject suggested by the foregoing title that are not included herein, for the reason that they are treated in notes upon other subjects to which they are distinctly related. Generally, as to correlative rights in percolating water, see notes in 64 L.R.A. 236; 17 L.R.A. (N.S.) 650; 23 L.R.A. (N.S.) 331; 25 L.R.A. (N.S.) 465; 37 L.R.A. (N.S.) 193; and L.R.A. 1915A, 369. Generally, as to underground pollution of water, see note to Gilmore v. Royal Salt Co. 34 L.R.A. (N.S.) 48. The notes to Brennan Constr. Co. v. Cumberland, 15 L.R.A. (N.S.) 541, and Weaver Mercantile Co. v. Thurmond, 33 L.R.A. (N.S.) 1061, treat of the liability for escape of water stored on premises. The cases cited in MACGINNIS v. MARLBOROUGH-HUDSON GAS Co., i. e., Barry v. gutter on the westerly side of Maple street remained in the pond until it either evaporated or seeped into the ground, joining the ground water. The defendant, under a license duly issued by the city, opened a trench 34 feet deep the whole length of Maple street, and about 10 feet from the easterly line of the street, for the purpose of laying a line of gas pipe. In connection with this work the contractor employed by the defendant blasted a ledge which extended from a few feet north of the plaintiff's house in a southwesterly direction across the street. When the frost Lowell, 8 Allen, 127, 85 Am. Dec. 690, holding that no action lies against a city for failure to keep a public sewer and cesspool in repair, whereby waste water accumulates and flows into the cellar of a neighboring house which is not connected by a drain with the sewer, and Kennison v. Beverly, 146 Mass. 467, 16 N. E. 278, which, in accordance with the above ruling, holds a town not liable for injury to property owners by the percolation of waters from its catch basins or gutters, are more fully discussed on pages 697, 698, and 702 of the note to Georgetown v. Com. 61 L.R.A., which treats generally of the duty and liability of a municipality with respect to drainage. As to liability of municipal corporation for damage to abutting property by water percolating through soil of highway by reason of defect therein, see note to Salzman v. New Haven, 22 L.R.A. (N.S.) 333. As to liability for damages to neighboring gas or oil well by percolation of water, see note to Atkinson v. Virginia Oil & Gas Co. 48 L.R.A. (N.S.) 168. in the ground began to thaw in the last days of March, 1913, which was about two months after the gas pipe was laid, and soon after the contractor had used a steam roller on the surface, water in considerable quantities began to percolate into the plaintiff's cellar through and under the wall. The city pumped it out daily for twenty-six days, during which time the water in the pond gradually receded. The jury specially found that the plaintiff's cellar was flooded because the ledge was blown out in the trench near the plaintiff's house; and also found that the work on the trench was not done negligently. Upon the return of the answers of the jury to the special questions, the judge ordered a verdict for the defendant and reported the case for determination As to liability of railroad for conducting surface water through its embankments and onto the property of an adjoining owner, see note to Parks v. Southern R. Co. 12 L.R.A. (N.S.) 680. There does not seem to be any case on all fours with MACGINNIS V. MARLBOROUGH HUDSON GAS Co., where the flooding was due to blasting. Where, however, independent contractors excavated up to a neighbor's wall, and were permitted by the landowner employing them to place bricks in the street gutter provided they did not obstruct it, it was held in Bohrer v. Dienhart Harness Co. - Ind. App. -, 45 N. E. 668, that the landowner was liable where the material was so placed as to obstruct the gutter, whereby the water percolated into the neighbor's cellar and caused his wall to fall; and the landowner was liable although the wall was weak and easily disturbed, and he did not foresee the result which followed the obstruction of the gutter. So, one employing a contractor to construct a drain from his cellar to a common sewer is liable where the work is so negligently done as to cause tide water to flow into the cellar of an adjoining owner. Sturges v. Theological Edu. Soc. 130 Mass. 414, 39 Am. Rep. 463. "In the case at bar, the defendant had the right to make an opening through the barrier for the purpose of laying a drain, but it was its duty to close it securely so that the cellars should be protected from the tide. Having employed an independent contractor, it is not responsible for his negligent acts while doing the work, because in respect to such acts he is not its servant; but if the work after it was done created a nuisance, and caused injury to the plaintiff, it is responsible. The jury would have been authorized in finding that the cause of the plaintiff's injury was the failure of the defendant to make the barrier tight after laying the drain. It was its duty to do this, and it cannot shield itself from responsibility by showing that it employed a contractor to do the work, who was negligent. The mischief to the plaintiff by this court upon a stipulation of the parties that, if the ordering of the verdict was wrong, judgment should be entered for the plaintiff in the sum of $612.50 with costs; otherwise judgment should be entered on the verdict. Mr. J. J. Shaughnessy, for plaintiff: The license from the city of Marlborough would not give the defendant any right to do anything in the street that would cause a special damage to the plaintiff's property, or an additional servitude which was not included in the laying out of the highway. Lentell v. Boston & W. Street R. Co. 202 Mass. 115, 88 N. E. 765; Daley v. Watertown, 192 Mass. 116, 78 N. E. 143; Baker v. Boston Elev. R. Co. 183 Mass. 178, 66 N. is the result of the neglect of the defendant to perform its duty." Generally, as to employer's liability for injury from flooding of lands through negligent drainage operations of independent contractor, see note to Jacobs v. Fuller & H. Co. 65 L.R.A. 853. A lot owner who unlawfully allows water to remain in an excavation on his lot is liable for damages resulting from water percolating through the soil and injuring the foundation walls of his neighbor's house. Quinn v. Chicago, B. & Q. R. Co. 63 Iowa, 510, 19 N. W. 336. The court stated that the question as to whether the defendant became guilty of a nuisance, as alleged in the petition, should have been submitted to the jury, and an instruction given that in case they so found, it was proper for them to allow plaintiff for such injury as her premises sustained from the percolation of water from the excavation after the same became and while it remained a nuisance. The court further observed that on principle it would seem that the plaintiff ought not to recover for such damages, if they resulted from the lawful and reasonable use by the defendant of its own lot. A railroad company which, in the construction of their railroad, opens a supply of underground water, and to prevent inundation, discharges it through an artificial channel upon plaintiff's land, may be held liable therefor in an action of tort, unless the discharge of the water was reasonably necessary and proper in the course of constructing, securing, or maintaining its road; and whether or not it was necessary was a question for the jury. Curtis v. Eastern R. Co. 14 Allen, 55. The city was held liable in Wilson v New Bedford, 108 Mass. 261, 11 Am. Rep. 352, for flooding the cellars of adjacent landowners by percolating water as a consequence of the city raising its dam and reservoir so as to cause an artificial pressure of the water through the soil. And in Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56, it was held actionable to cause filthy water to percolate from the defendant's vault through his own soil and then |