NATURE OF THE CONTRACT OF CARRIAGE. 463 



reference to other kinds of property that I do not think this 

 kind of property falls within the reasons upon which the com- 

 mon-law liability of common carriers was fixed." ^ This de- 

 cision has been followed in later cases in the same State.* 

 And the opinion that railway companies are not insurers of 

 animals but are bound to use only reasonable care and dil- 

 igence has been expressed in Tennessee,^ Kentucky/" Ala- 

 bama," and New York.^^ 



The importance of the distinction consists in the fact that, 

 if the carrier of live-stock is a common carrier and insurer, 

 "in case of loss or injury to the freight," as is said by a well- 

 known authority, "the burden of proving that it arose from 

 its own fault rests upon him if he would excuse himself upon 

 that ground. Whereas, if he is to be considered merely as the 

 paid agent of the owner for the transportation of his stock, 

 his liability would rest solely upon the question of negligence, 

 the burden of proving which would be upon the owner of the 

 freight." ^^ 



The contract of carriage is controlled by the law of the 

 State where it is made, unless a contrary intention is shown.^* 

 And a provision in a contract for the transportation of a 

 person to accompany the shipment, that questions arising 

 under it shall be determined by the laws of a certain State, 

 does not indicate the intention that the contract on the other 



' Mich. South. & N. I. R. Co. v. McDonough, 21 Mich. 165, 189, per 

 Christiancy, J. 



' See Lake Shore & Mich. S. R. Co. v. Perkins, 25 Mich. 329; Heller 

 V. Chic. & G. T. R. Co., 109 id. 53. 



And see an article in S Alb. L. Jour. 299 approving of that case. 

 That railroads in Michigan are strictly private enterprises and have not 

 a quasi-public character, see Kan. Pac. R. Co. v. Nichols, 9 Kan. 235. 

 • Baker v. Louisville & N. R. Co., 10 Lea (Tenn.) 304. 

 " Louisville, Cine. & L. R. Co. v. Hedger, 9 Bush. (Ky.) 645. 

 " E. Tenn., V. & G. R. Co. v. Johnston, 75 Ala. 596. 

 " Cragin v. New York Cent. R. Co., 51 N. Y. 61. 

 " Hutchinson Carriers § 222. 

 " 111. Cent. R. Co. v. Beebe, 174 III. 13. 



