Pa. St. 514; 15 Am. St. Rep. 733; Masterson v. New York Cent. etc. R. R. Co., 84 N. Y. 247; 38 Am. Rep. 510; Noyes v. Boscawen, 64 N. H. 361; 10 Am. St. Rep. 410; Follman v. City of Mankato, 35 Minn. 522; 59 Am. Rep. 340; Philadelphia etc. R. R. Co. v. Hogeland, 66 Md. 149; 59 Am. Rep. 159; State v. Boston etc. R. R. Co., 80 Me. 430; Town of Knightstown v. Musgrove, 116 Ind. 121; 9 Am. St. Rep. 827; Chicago etc. R. R. Co. v. Spilker, 134 Ind. 380. He denied that the question before the court had been settled or necessarily involved in the case of Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, and said: "I think it may be said that the question before us was not necessarily involved in the Miller case, and that it was not considered the controlling point. If it is to be treated as conclusive, against the overwhelming weight of authority in the United States and England, we shall apparently accept an incidental remark in an opinion as decisive upon an important principle, which deserved a full discussion before being settled. An examination will show that this decision has never since been applied beyond a recognition of the doctrine in cases where it was not involved in the decision. It was mentioned and recognized in Cuddy v. Horn, 46 Mich. 596; 41 Am. Rep. 178; but the court disposed of the case upon the ground that the passenger upon a yacht had no control of the mauagement. Schindler v. Railway Co., 87 Mich. 411 the court again recognized the rule, saying that it was settled in Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, but that it did not apply, because the defendant was guilty of wan tonness. The plaintiff was a child riding with a neighbor. Mr. Justice Champlin, in a concurring opinion, protested against the doctrine: 87 Mich. 416.

In

"In Battishill v. Humphreys, 64 Mich. 508, Mr. Justice Morse uses the following language: 'I am not content to let the question pass as a settled one in this state. At least I am not willing to assent to the proposition that the negligence of any other person can become the contributory negli gence of a plaintiff without his fault.'

"In the case of Shippy v. Village of Au Sable, 85 Mich. 292, Mr. Justice Morse expressed satisfaction with the views in the Battishill case, and added: ‘I am also satisfied that the greater weight of authority in this country is now opposed to the contention of the defendant.'

"In neither of these cases was the doctrine of Lake Shore etc. R. R. Co. ▼. Miller, 25 Mich. 274, applied.

"It seems, therefore, that the authority of the case of Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, has been repeatedly questioned. The time has arrived when the question must be settled. I think it should be in conformity to the weight of authority and the better rule. "The judgment should be reversed, and a new trial ordered. "MCGRATH, C. J., concurred with HOOKER, J."

NEGLIGENCE OF DRIVER OF VEHICLE, WHETHER IMPUTED TO PASSENGER. The negligence of the driver of a wagon and team which collides with a railway train does not necessarily preclude a recovery by a person riding in the wagon with such negligent driver; but such person cannot recover in such a case unless it affirmatively appears that his own negligence did not proximately contribute to his injury: Miller v. Louisville etc. Ry. Co., 128 Ind. 97; 25 Am. St. Rep. 416, and note.

SMITH V. MICHIGAN CENTRAL RAILROAD COMPANY.

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[100 MICHIGAN, 148.]

CARRIERS OF LIVESTOCK-LIABILITY AS BAILEE.-A railroad company accepting livestock for transportation under a contract providing that it "is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner" thereby becomes a bailee for hire, and, having control of the cars in which the stock is shipped, is bound to furnish the shipper an opportunity to give the animals the care they may require in case the train is delayed. CARRIERS OF LIVESTOCK NEGLIGENCE-SUFFICIENCY OF PLEADING AND PROOF. In an action by a shipper of livestock against a railroad com. pany to recover the value of an animal lost a declaration which alleges both delay in the transportation and failure to furnish an opportunity for feeding and watering the stock justifies a recovery upon proof of omission on the part of the company to furnish an opportunity to the shipper to feed and water the stock, although the company is not liable for the delay. NEGLIGENCE-SUFFICIENCY OF COMPLAINT. - If any negligent act of one party is charged which, in the conditions existing, results in loss to another, the latter is entitled to recover, although the declaration may charge other acts as negligent which are either not proven or which may not in law be negligent. CARRIERS OF LIVESTOCK-CONSTRUCTION OF CONTRACT OF SHIPMENT.—A provision in a contract for the carriage of livestock that "the stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner, does not mean that the duty is to be performed by the shipper while the train is in motion and without being afforded an opportunity by the carrier to perform the duty. On the contrary the carrier must afford the shipper such opportunity if the train is delayed.

Hanchett, Stark & Hanchett, for the appellant.

F. E. Emerick, for the respondents.

150 MONTGOMERY, J. This is an action on the case. The declaration alleges that the defendant accepted from plaintiff's fifteen horses to be transported for hire and reward from Gaylord to Saginaw; that it became the duty of the defendant to take due and proper care of the same, and carry and convey the same with reasonable safety and dispatch, and to safely and securely, and without unnecessary delay, deliver the horses at the city of Saginaw; that defendant neglected its duty; that it left the car conveying the horses on the sidetrack of defendant's railway at West Bay City from 1 o'clock in the morning until 10 o'clock in the forenoon; that the said plaintiffs, on discovering that the defendant intended leaving the car standing on the said sidetrack for said length of time, requested the defendant to move the

car to a place in defendant's grounds, where the horses could be fed, watered, and cared for, and, if necessary, temporarily removed from said car; and that defendant refused and neglected to do so, or to permit said horses to be fed, watered, and cared for, or to feed, water, and care for said horses, or to allow said horses to be taken 151 out of said car, and, without cause or reason therefor, caused said car, with said horses therein, exposed and uncared for, to stand and remain. said unreasonable period at said West Bay City.

The evidence adduced on the trial showed that the horses were shipped from Gaylord, after having been properly fed and cared for, on the 29th of April; that they were placed in the car in good condition; that the car was loaded at 9 o'clock in the morning, and, if the trains had been running on their regular time, would have reached Saginaw at 9 o'clock in the evening of the 29th. But the train to which the car was attached missed its connection at Grayling, so that it did not reach West Bay City until 1 o'clock A. M. of April 30th. It was there sidetracked, and remained at West Bay City until 12:35 P. M. of the 30th, when it was attached to a freight train, and taken to its destination, arriving at Saginaw at 1:55 P. M. The plaintiffs offered testimony tending to show that, upon the arrival of the car at West Bay City, John Welsh, an employee of the plaintiffs, in charge of the stock, went to the office of the yardmaster, and was told that the horses would be sent forward to Saginaw in about an hour; that, at the expiration of the hour, Mr. Welsh again inquired of the yardmaster, and was then informed that the car could not go out until the regular train, which left about 11 o'clock in the forenoon; that Welsh then told him that the horses had been in the car about twenty-four hours without food or water, and asked the yardmaster if there was any place he could feed and water them; that the yardmaster replied, "There is water down the track there," and Welsh replied that he could not carry the water and water them in the car, and requested the yardmaster to move them down to where the water was. The plaintiff's also offered testimony tending to show that there would not be room in the car for the man to get in to water the horses, and that there was no way of 152 watering and feeding them without taking them from the car; that there was no platform or chute at the place where the car was left upon which the horses could be removed from the car, although there was a platform with

inclined plank at the freight depot near by in the yard, for the purpose of unloading and loading horses.

The evidence showed that, at the time the cars were shipped, the contract was signed by the plaintiffs' agent, which provided that: "The said Michigan Central Railroad Company shall not be liable for any loss or damage which the shipper or owner of said livestock may suffer by reason of delay of trains, or by escape or loss of any stock from cars, or by reason of injuries to animals arising from the bruising or wounding themselves or each other, or from crowding in the cars, or from improper loading, or by reason of any loss or damage arising in the loading or unloading of said stock, or by reason of any other injuries or damage happening to said stock while in the cars of said company, except such as may arise from a collision of the train or the throwing of the cars from the track during transportation, and shall in no case be responsible for an amount exceeding one hundred dollars for each or any animal transported. Said stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner, and at his expense and risk. No liability of said company shall extend beyond its own line of road."

Plaintiffs also offered testimony tending to show that, because of the neglect and want of care, one of the horses died shortly after being received at Saginaw, and that sixteen dollars was paid to a physician for caring for the horses because of their condition, induced by the alleged negligence of the defendant. Under the instructions hereinafter referred to the plaintiffs recovered a verdict for one hundred dollars, the value of the horse that died, and for sixteen dollars, paid to a physician in caring for the injured animals.

The defendant brings error, and alleges: 1. That the declaration is defective, in that it does not correctly state 153 the relationship of the parties and the duties devolving upon the defendant from such relationship. We think the declaration sufficient. The contract relations between the parties were but material for the purpose of showing that the defendant became a bailee for the animals for hire. This is shown sufficiently by the declaration. The duty of the defendant resulting from the relation is stated somewhat broadly, but, in alleging negligence, the plaintiffs have proceeded with great particularity, and set forth the precise state of facts which they rely upon, and which are that, after the car had

reached West Bay City, the defendant neglected to furnish an opportunity for the plaintiffs to water and care for the horses, and neglected itself to provide this care. If the plaintiffs proved these facts, and proved that they were not themselves in fault, we think that, in any view of the relationship of the parties, the defendant is liable. It is not contended by the plaintiffs that the defendant is a common carrier, but it is insisted, and we think rightly, that the defendant, as a bailee for hire, having control of the car in which the horses were placed, was bound at least to furnish the plaintiffs an opportunity to give the animals the care which they required: See American Merchants' Union Express Co. v. Phillips, 29 Mich. 515.

It is also suggested that as the declaration charges both delay and failure to furnish opportunity for feeding and watering the horses, and, as neither alone would have caused the death of the horse, it becomes necessary for the plaintiffs, not only to prove both elements, but to show that defendant omitted to perform its duty to the plaintiffs in both particulars, and therefore, if there is no liability on the part of defendant for delay of trains, that one of the essential elements of the proximate cause cannot be charged against the defendant, and the case must fail. We cannot accept this reasoning. If any negligent act of 154 defendant is charged which, in the conditions existing, was likely to and did result in loss to the plaintiffs, they are entitled to recover, and this though the declaration may have charged other acts as negligent which are either not proven or which may not in law be negligent. The gravamen of the charge is that, with the necessary retention of the horses in the car until their arrival at Saginaw, the defendant negligently refused to furnish any opportunity for the horses to be fed and watered, and this, under the charge of the court, the jury must have found was established by the testimony. The court charged the jury as follows:

"Mr. Welsh told us that, when the car arrived at West Bay City, he was of the opinion that the horses needed food and water. The plaintiffs claim that he made a request of the railroad company to place that car in such a position that he could water the horses. In view of the condition of affairs at West Bay City it must be deemed to be a request to take that car to a point where there was water, and where the horses could be unloaded in order to water them. If