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likely to be thrown off in the same manner and under the same circumstances at any arrival of a postal car. By this knowledge the defendant was brought fairly within the rule which enjoins care, not only on the part of itself and its servants, but also like care in preventing injury from the careless or wrongful act of any other person whom it permits to come upon its premi

ses.

The occupants of the postal car are no exception to this rule; they were not strangers or uninvited. They came under a contract voluntarily made by the defendant, and which secured the carriage and delivery of the mails upon such conditions as it imposed or acceded to. Its police power extended over the persons employed in it, while they were on the defendant's track or on its stations, certainly not to interrupt them in the discharge of their official duties, but so far as practicable to prevent injury to those for whose safety it was bound to provide. So it was held in Stewart v. Brooklyn & Cross Town R., 90 N. Y. 588, applying the rule to violence committed by strangers and co-passengers in Flint v. Norwich & N. Y. Trans. Co., 34 Conn. 554, to violence from whatever source arising, and this although the aggressors were soldiers received upon the boat on compulsion. The doctrine of that case is approved and its reasoning followed in the case of Putnam, supra.

Nor was it necessary in order to charge the defendant with the duty of care and vigilance, that on some former occasion a like injury had happened. The act was itself dangerous. There was under the circumstances of which the defendant had notice, a natural and probable connection between the act of throwing out a mail bag with its contents and the injury which actually happened. It could have been foreseen, and the defendant owed a duty to those who might probably be on the platform, either to prohibit the practice which made the place dangerous, or exclude the passenger until train time, or provide some other way for ingress to the cars, or at least give notice to him that he must take care and avoid the danger, or in some other way use reasonable caution to prevent damage from the danger, of which it knew or ought to have known. Whether such reasonable care was taken by notice, guarding the way or otherwise, must be determined as a matter of fact. So far as the case now discloses, the defendant failed to do either of these things. It seems to me therefore that the plaintiff's evidence tended to establish every proposition, which as set forth in his complaint, constituted a fair cause of action-damages occasioned by the omission of duty which the defendant owed to him, and that he was not himself in default. These were questions for the jury and should have been submitted to them. The plaintiff was therefore improperly nonsuited.

It follows that the judgment of the Special and General Terms should be reversed and a new trial granted, costs to abide the event.

All concur, except Rapallo and Finch, JJ., dissenting.

Judgments reversed. [To same effect is Snow v. Fitchburg R. Co., 136 Mass. 552, to appear in 49 Am. Rep. 40.]

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United States, and that the practice, pleadings, and forms and modes of proceedings in such cases shall conform as near as may be to those of the courts of the States in which the courts sit, is applicable only where there is no rule on the same subject prescribed by act of Congress, and where the State rule is not in conflict with any such law.

The statute of New York, which permits a party to a suit to be examined by his adversary as a witness at any time previous to the trial in an action at law, is in conflict with the provisions of the Revised Statutes of the United States which enacts that "The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided."

The courts of the United States sitting in New York have no power therefore to compel a party to submit to such an examination, and no power io punish him for a refusal to do so.

Nor can the United States court enforce such an order made by a State court before the removal of the case into the Circuit Court of the United States.

Where a person is in custody, under an order of the Circuit Court, for contempt in refusing to answer under such an order, this court will release him by writ of habeas corpus on the ground that the order of imprisonment was without the jurisdiction of that court.

PET

ETITION for writs of habeas corpus and certiorari.
The opinion states the facts.

MILLER, J. This is an application on the part of Clinton B. Fisk for a writ of habeas corpus, to be directed to the marshal of the Southern District of New York, in whose custody the petitioner is held under an order of the Circuit Court for that district.

The history of the case which resulted in this order, so far as it is necessary to the decision of the matter before us, may be briefly stated as follows:

Francis B. Fogg brought suit in the Supreme Court of the State of New York against Fisk to recover the sum of $63,250, on the allegation of false and fraudulent representations made by Fisk in the sale of certain mining stocks.

In the progress of the suit, and before the trial, the plaintiff obtained from the court the following order: "Ordered that the defendant, Clinton B. Fisk, be examined and his testimony and deposition taken as a party before trial, pursuant to sections 870, 871, 872. 873, etc., of the Code of Civil Procedure, and that for such purpose he personally be and attend before the undersigned, a justice of this court, at the chambers thereof, to be held in the new county court-house, in the said city of New York, on the 31st day of January, 1883, at 11 o'clock in the forenoon of that day." A motion to vacate this order was overruled and the judg ment finally affirmed by the Court of Appeals.

Thereupon the defendant appeared before the court and submitted to a partial examination, answering some questions and objecting to others, until pending one of the adjournments of the examination, he procured an order removing the case to the Circuit Court of the United States.

In that court an order was made to continue the ex amination before a master, to whom the matter was referred. The defendant refusing to be sworn and declining to be examined, he was brought before the Circuit Court on an application for attachment for a contempt in refusing to obey the order.

Without disposing of this motion, the Circuit Court made another order, to wit:

"It is hereby ordered and adjudged that the motion to punish the said defendant for such contempt stand adjourned to the next motion day of this court, to wit, on the 28th day of March, 1884.

"It is further ordered that the defendant, Clinton

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B. Fisk, be and he is hereby directed and required to attend personally on the 14th day of March, 1884, before the Honorable Addison Brown, one of the judges of this court, at a stated term thereof, at his chambers in the post office building, in said city of New York, at 11 o'clock in the forenoon of that day; then and there, and on such other days as may be designated, to be examined and his testimony and deposition taken and continued as a party before trial, pursuant to section 870, et seq., of the Code of Civil Procedure, and for the purposes mentioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this action."

The defendant appeared before the court in pursuance of this order, and stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questions propounded to him by the counsel for plaintiff, he refused to do so.

For this, on further proceeding, he was held by the court to be in contempt, and fined five hundred dollars, and committed to the custody of the marshal until it was paid.

It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition, that the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power.

This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors.

When however a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make the, order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will by its writ of habeas corpus discharge the prisoner. It follows necessarily, that on a suggestion by the prisoner, that for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make "inquiry into the cause of the restraint of liberty." Section 752, Rev. Stat.

That the case as made by the petitioner comes, for the purposes of this inquiry, within the jurisdiction of this court, under the principles above mentioned, is established by the analogous cases: Ex parte Rowland and others, 104 U. S. R. 164; Ex parte Lange, 18

Wall. 163.

But did the court transcend its jurisdiction in fining the petitioner for contempt? Or rather did it have the power to make the order requiring him to submit to the preliminary examination? For if it had that power it clearly could enforce obedience to the order by fine and imprisonment, if necessary. The record of the entire proceeding in this branch of the case, both in the State court and the Circuit Court, is before us, and we are thus enabled to form an intelligent opinion on the question presented.

The power of the court to continue the examination

of the defendant, after the removal of the case into the court of the United States, is asserted on two grounds:

1. That the order for his examination, having been made by the Supreme Court of New York, under its rightful jurisdiction, while the case was pending in it, is still a valid order, partially executed, which accompanies the case into the Circuit Court; and that in that court it cannot be reconsidered, but must be enforced.

2. That if this be not a sound proposition, the Circuit Court made an independent order of its own for the examination of the defendant, which order is justified by the principle that the Code of Civil Procedure of New York, under which both orders were made, is a part of the law governing the courts of the United States sitting within that State.

We will inquire into the latter proposition first, for the points to be considered in it lie at the foundation of the other also.

The general doctrine that remedies, whose foundations are statutes of the State, are binding upon the courts of the United States within its limits, is undoubted. This well-known rule of the Federal courts, founded on the act of 1789 (1 U. S. Stat. 92; Rev. Stat., § 721), that the laws of the several States, except when the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, was enlarged in 1872 by the provision found in section 914 of the revision. This enacts that "the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity and admiralty causes in the Circuit and District Courts, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any thing in the rules of courts to the contrary notwithstanding."

In addition to this, it has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the States prevail in those courts.

The matter in question here occurred in the court below in regard to a common-law action. It was in regard to a method of procuring and using evidence, and it was a proceeding in a civil cause other than equity or admiralty.

We entertain no doubt of the decision of the Court of Appeals of New York, that it was a proceeding authorized by the statutes of New York, under which, in a New York court, defendant was bound to an

swer.

The case as thus stated, is a strong one for the enforcement of this law in the courts of the United States. Ex parte Boyd, 105 U. S. 647.

But the act of 1789, which made the laws of the States rules of decision, made an exception when it was "otherwise provided by the Constitution, treaties, or statutes of the United States."

The act of 1872 evidently contemplates the same exception by requiring the courts to conform to State practice as near as may be. No doubt it would be implied, as to any act of Congress adopting State practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject.

There are numerous acts of Congress prescribing modes of procedure in the Circuit and District Courts of the United States at variance with laws of the States in which the courts are held. Among these are the modes of impauelling jurors, their qualifications, the number of challenges allowed to each party. Two chapters of the Revised Statutes, XVII and

XVIII, embracing sections 858 to 1042, inclusive, are devoted to the subjects of evidence and procedure alone.

The case before us is eminently one of evidence and procedure. The object of the orders is to procure evidence to be used on the trial of the case, and this object is effected by a proceeding peculiar to the courts of New York, resting alone on a statute of that State. There can be no doubt that if the proceeding here authorized is in conflict with any law of the United States, it is of no force in the courts of the United States. We think it may be added further in the same direction, that if Congress has legislated on this subject and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of any legislation of the State in the same matter.

A striking illustration of this effect of an act of Congress in prescribing rules of evidence is to be found in section 858 of the Revised Statutes originally enacted in an appropriation bill in 1864, and the amendment to it passed in 1865.

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It now reads: "In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, that in actions by or against executors, administrators, guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court."

This act of Congress when passed made competent witnesses in the courts of the United States many millions of colored persons who were not competent by the laws of the States in which they lived, and probably as many more persons as parties to suits, or interested in the issues to be tried, who were excluded by the laws of the States. It has never been doubted that this statute is valid in all the courts of the United States, not only as to the introduction of persons of color and parties to suits; but in the qualification made by the proviso where its language differs from provisions somewhat similar in State statutes, the act of Congress, critically construed, has always been held to govern the court. Monongahela Bank v. Jacobus, 109 U. S. 275; Potter v. Bank, 102 id. 163; Page v. Burnstine, id. 664; King v. Worthington, 104 id. 44.

Coming to consider whether Congress has enacted any laws bearing on the question before us, we find the following sections of the Revised Statutes, in chapter XVII, on evidence, which we here quote together:

Section 861. The mode of proof, in the trial of actions at common law, shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided."

"Section 863. The testimony of any witness may be taken in any civil cause, pending in a District or Circuit Court, by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient or infirm." The remainder of this section, and sections 864 and 865, are directory as to the officer before whom the deposition may be taken, the notice to the opposite party, and the manner of taking, testifying and returning the deposition to the court.

"Section 866. In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatum to take depositious according to common usage; and any Circuit Court, upon application to it

as a court of equity, may according to the usages of chancery direct depositions to be taken in perpetuam rei memoriam, if they relate to any matter that may be cognizable in any court of the United States."

Section 867 authorizes the courts of the United States, in their discretion, and according to the practice in the State courts, to admit evidence so taken; and sections 868, 869, and 870 prescribe the manner of taking such depositions, and of the use of the subpœna duces tecum, and how it may be obtained.

No one can examine these provisions for procuring testimony to be used in the courts of the United States and have any reasonable doubt, that so far as they apply, they were intended to provide a system to govern the practice in that respect in those courts. They are, in the first place, too complete, too far-reaching, and too minute to admit of any other conclusion. But we have not only this inference from the character of the legislation, but it is enforced by the express language of the law in providing a defined mode of proof in those courts, and in specifying the only exceptions to that mode which shall be admitted.

This mode is "by oral testimony and examination of witnesses in open court, except as hereinafter provided."

Of course the mode of producing testimony under the New York Code, which was applied to petitioner, is not oral testimony and examination of a witness in open court, within the meaning of this act of Congress. This obviously means the production of the witness before the court at the time of the trial, and his oral examination then; and it does not mean proof by reading depositions, though those depositions may have been taken before a judge of the court, or even in open court, at some other time than during the trial. They would not, in such case, be oral testimony. The exceptions to this section, which all relate to depositions, also show that proof by deposition cannot be within the rule, but belongs exclusively to the exceptions.

We come now to inquire if the testimony sought to be obtained from petitioner by this mode comes within the exception referred to in section 861. These exceptions relate to cases where it is admissible to take

depositions de bene esse under section 863, or in perpetuam rei memoriam and under a dedimus potestatum under section 866.

In the first of these, the circumstances which authorize depositions to be taken in advance for use on the trial are mentioned with great particularity. They

all have relation to some conditions of the witness; to residence more than a hundred miles from the court, or bound on a sea voyage, or as going out of the United States or out of the district, or more than a hundred miles from the place of trial before the time of trial, or an ancient or infirm witness.

None of these things are suggested in regard to peti. tioner, nor were they thought of as a foundation of the order of the State court or of the Circuit Court. The statute of New York, under which both courts acted, makes no such requirements as a condition to the examination of the party. It is a right which, if the judge may possibly refuse to grant, he is in that matter governed by none of the conditions on which the deposition may be taken under the act of Congress.

Nor does the case come within the principle or profess to be grounded on the power conferred by section 866, which is another exception to the rule established by section 861. It is not according to common usage to call a party in advance of the trial at law, and subject him to all the skill of opposing counsel to extract something which he may then use or not, as it suits

his purpose. This is a very special usage, dependent wholly upon the New York statute.

Nor is it in any manner made to appear that this examination 66 was necessary in order to prevent a delay or failure of justice in any of the courts of the United States," nor is any such proposition the foundation of the court's action.

The petitioner having removed his case into the Circuit Court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed.

This precise point is decided, and in regard to this very question of the differing rules of evidence prevailing in the State and Federal courts, in King v. Worth

These are the exceptions which the statute provides to its positive rule that the mode of trial in actions at law shall be by oral testimony and examination of witnesses in open court. They are the only exceptionsington, 104 U. S. 44. thereinafter provided. Does the rule admit of others? Can its language be so construed?

On the contrary its purpose is clear to provide a mode of proof in trials at law to the exclusion of all other modes of proof; and because the rigidity of the rule may in some cases work a hardship, it makes exceptions of such cases as it recognizes to be entitled to another rule, and it provides that rule for those cases. Under one or the other all cases must come. Every action at law in a court of the United States must be governed by the rule, or by the exceptions which the statute provides. There is no place for exceptions made by State statutes. The court is not at liberty to adopt them, or to require a party to conform to them. It has no power to subject a party to such an examination as this. Not only is no such power conferred, but it is prohibited by the plain language and the equally plain purpose of the acts of Congress, and especially the chapter on Evidence of the Revision. The New York statute would, if in force, repeal or supersede the act of Congress.

It does not require much deliberation to see that if the acts of Congress forbid the use of this kind of tes timony in the courts of the United States, no order for taking it made in the State court while the case was pending in that court, with a view to its use on a trial there, can change the law of evidence in the Federal court. Without deciding now, for the question is not before us, whether the testimony actually given ander that order and transmitted with the record of the case to the Circuit Court, can be used when the trial takes place, we are well satisfied that the latter court cannot enforce the unexecuted order of the State court to procure evidence, which by the act of Congress is forbidden to be introduced on the trial, if it should be so taken.

The provision of section 4 of the act of March 3, 1875, 18 U. S. Stat. 470, declares orders of the State court, in a case afterward removed, to be in force until dissolved or modified by the Circuit Court. This fully recognizes the power of the latter court over such orders. And it was not intended to enact that an order made in the State court, which affected or might affect the mode of trial yet to be bad, could change or modify the express directious of an act of Congress on that subject.

Nor does the language of the court in Duncan v. Greghan, 101 U. S. 810, go so far. When it is there said that "the Circuit Court has no more power over what was done before the removal than the State court would have had if the suit had remained," it is in effect affirmed that it has at least that much power. There can be no doubt that on a proper showing before the State court it could have discharged the order for this examination or suspended its further execution. In acting on such a motion as this it would have been governed by the laws of the State of New York. In deciding whether it would continue the execution of this order or decline to execute it further the Circuit Court was governed by the Federal law. If the law governing the Circuit Court gave it no power to make or continue this examination, but in fact forbid it, then it could not enforce the order.

In that case, after it had been once heard on appeal in the Supreme Court of Illinois, it was removed into the Circuit Court of the United States.

The Supreme Court had reversed the judgment of the inferior court, because among other things the evidence of witnesses had been received whom that court held to be incompetent.

On the trial in the Circuit Court they were held to be competent and admitted to testify, notwithstanding the decision of the Supreme Court of the State, on the ground that section 858 of the Revised Statutes of the United States, already copied in this opinion, made them competent, and although it differed in that respect from the statute of Illinois on the same subject, it must prevail in the Circuit Court.

It was strongly urged here that this was error, and as to that case the decision of the Illinois court, made while it was rightfully before it, should control. But this court held otherwise, and said: "The Federal court was bound to deal with the case according to the rules of practice and evidence prescribed by the acts of Congress. If the case is properly removed the party removing it is entitled to any advantage which the practice and jurisprudence of the Federal courts give him."

The Circuit Court was therefore without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order fining him for contempt and committing him to the custody of the marshal was without jurisdiction and void, and the prisoner is entitled to his release.

It is supposed that the announcement of the judgment of the court that he is entitled to the writ will render its issue unnecessary. If it shall prove otherwise the writ will be issued on application to the clerk,

NEW YORK COURT OF APPEALS ABSTRACT.

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PARTNERSHIP FICTITIOUS 66 AND CO." CONSTRUCTION.-Section 1, ch. 281 of the Laws of 1883, reads as follows: "No person shall hereafter transact business in the name of a partner not interested in his firm, and where the designation and Company' or & Co' is used, it shall represent an actual partner or partners." This statute does not appear to be a very useful one. It does not compel partners to disclose their true names, or any of their names, in the partnership designation. They may still do business under any style, not untruly containing the name of any person which they choose to assume, such as the "Union Towing Company," the "Eureka Company' or other fanciful names (Crawford v. Collins, 45 Barb. 269; Wright v. Hooker, 10 N. Y. 51); and it may be very difficult in such cases to ascertain who the numerous persons are composing the partnership. Even an individual may transact his business under such a name without violating the statute. So these plaintiffs could have done business under the name " Gay & Co.," and the public would have been just as liable to imposition as when the business was done under the

name of Gay Brothers & Co. Persons giving credit to a firm, either rely upon the responsibility of the firm, by whomsoever it may be constituted, or they rely upon the members thereof, whose names by inquiry, or in some other way, become known to them. Without this statute, one imposed upon by a fictitious firm would have his civil remedy for the fraud or deceit, and there would generally also be a remedy by indictment for false pretenses. So the statute is not only not very beneficial, but it is also highly penal and it should therefore be strictly construed. Where therefore in a bond given to said firm, which used the "&Co.," the names of the actual partners were stated, and it was known to all the obligors that they alone constituted the firm, heid, that the case was not within the purpose or intent of the statute, and that the use of the fictitious designation was not a defense to an action upon the bond. It is a rule peculi arly applicable to the construction of penal statutes, that a thing within the letter of a statute is not within the statute unless within the intention thereof; and So too in the construction of remedial statutes, it is generally held that a thing within the intention is within the statute though not within the letter; and these rules have many illustrations in the books. People v. Utica Ins. Co., 15 Johns. 358, 380; Holmes v. Carley, 31 N. Y. 289. It is said in an old case (Eyston v. Studd, 2 Plow. 465), "it is not the words of the law, but the internal sense of it that makes the law, and our law, like all others, consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law.” “Quia ratio legis est anima legis." Gay v. Siebold. Opinion by Earl, J. (See 60 How. Pr. 163; 83 N. Y. 74.) [Decided Dec. 2, 1884.]

EVIDENCE-EXPERTS-HYPOTHETICAL QUESTIONSCREDIBILITY OF WITNESS.-Hypothetical questions are allowed to be put to experts; but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which if controverted the jury might legitimately find on weighing the evidence. Purely imaginary or abstract questions, assuming facts on theories for which there is no foundation in the evidence, are not admissible as matter of right. On cross-examination, such abstract or theoretical questions, not founded upon the facts of the case on trial, may be put, for the purpose of testing the knowledge and information of the witness, as to the subject upon which he has been examined, and his competency to give the opinion which he may have pronounced on his direct examination. But the allowance of such questions, like other collateral inquiries touching only the credibility of the witness, rests in the discretion of the court, and when the discretion is fairly exercised, it is not error to exclude them. Dilleber v. Home Life Ins. Co., 87 N. Y. 79-88; La Beau v. People, 34 id. 223. Were the rule otherwise, there would be no limit to the cross-examination of a witness called as an expert. It could be protracted as long as the fertility of the imagination of the examining counsel might enable him to suppose cases, and the mental and physical powers of endurance of the witness would permit him to frame answers. People v. Augsbury. Opinion by Rapallo, J. [Decided Dec. 16, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

CARRIER-LIVE-STOCK-DELAY IN SHIPMENT—DAMAGES. Whether a railway company is under the same obligations to furnish cars for, and receive, safely carry

and stow live-stock as other ordinary inanimate freight, is a question upon which much has been written, and some diversity of opinion has been expressed., It is not necessary here to analyze the adjudged cases, nor indicate the weight of reason or authority. Betts v. Farmers' L. & T. Co., 21 Wis. 81, was an action for injuries caused by the carrier's negligence in carrying the plaintiff's cattle in a car with defective and imperfectly fastened doors, which were thrown open by the motion of the cars so that the cattle escaped. The cattle were shipped under a special contract, which, among other things, provided that the company should "not be liable for loss in jumping from the cars." In that case, Dixon, C. J., giving the opinion of the court, said: "As to this species of property, we think it competent for the carrier to contract the owner shall assume all risk of damage or injury, from whatever cause, happening in the course of transportation." See also C. & N. W. R. Co. v. Van Dresar, 22 Wis. 512; Morrison v. Phillips & Colby Constr. Co., 44 id. 405. This proposition seems to cover more ground than the point actually decided in that case, but the English cases cited by the learned chief justice seem to sustain the proposition. To them others may be added: McCance v. London & N. W. Ry. Co., 7 Hurl. & N. 477: Gannell v. Ford, 5 Law T. (N. S.) 604; Robinson v. Great Western Ry. Co., 35 L. J. C. P. 123; Harrison v. London, etc., Co., 2 Best & S. 122; Manchester v. Brown, 50 L. T. Rep. (N. S.) 281. But there are cases even in England which seem to hold a contrary doctrine. McManus v. Lancashire, etc., Co., 4 Hurl. & N. 327; Allday v. Great Western Ry. Co., 5 Best & S. 903; Gregory v. West Midland Ry. Co., 2 Hurl. & C. Exch. 944; Rooth v. Northeastern Ry. Co., L. R., 2 Exch. 173; Doolan v. Directors, L. R., 2 App. Cas. 792; Moore v. Great S. & W. Ry. Co., 10 Ir. Com. Law, 65. Just how far the cases cited were controlled by the presence or absence of local statutes it not necessary here to determine. It is well settled that a carrier of ordinary inanimate freight cannot by any agreement, however plain and explicit, wholly relieve itself from all liability whatsoever resulting from its own negligence. Black v. Goodrich Transp. Co., 55 Wis. 319. Just the extent that a carrier of such inanimate freight may by express contract exempt itself from liability for its own negligence need not here be determined. Certainly there is a broad distinction between the risks incident to the carriage of such ordinary inanimate freight, and that of live animals having instincts, habits, propensities, wants, necessities and powers of locomotion. Requisite care in case of the transportation of such live-stock therefore necessarily implies food and water periodically, and at times especial care and shelter outside the vehicle of carriage. All these things would require help, appliances, conveniences and extra arrangements not requisite in the case of ordinary inanimate freight, which a carrier might be unable or unwilling to furnish, and yet if furnished by the owner of such livestock, and the risk incident to them assumed by such owner, the carrier might be able and willing to undertake such transportation. And yet, with all reasonable care, it would be impossible to secure at all times absolute safety in the transportation of such live animals. This broad distinction between that class of freightage and ordinary inanimate freight has frequently been observed by the courts. Blower v. Great Western Ry. Co., L. R., 7 C. P. 655; Shir, Lead. Cas., No. 22, p. 50; Clarke v. Rochester, etc., Ry. Co., 14 N. Y. 570; Penn v. Buffalo, etc., Ry. Co., 49 id. 204; Cragin v. New York Central Ry. Co., 51 id. 61; Holsapple v. Rome, Wat. & Ogd. R. Co., 3 Am. & Eng. Ry. Cas. 487; Smith v. New Haven, etc., R. Co., 12 Allen, 531; Evans v. Fitchburgh R. Co., 111 Mass. 142; Michigan

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