606 CARRIERS OF ANIMALS. 



he liable where the injuries were due to the original condi- 

 tion of the animals and their want of inherent vitality.^'"' 

 The rule is otherwise where the injury, though due to the 

 propensities of the animal, could have been prevented by the 

 exercise of due care.^''^ But an instruction that the defend- 

 ant is not liable for injuries to cattle caused by their inherent 

 viciousness is rightly refused if such issue has not been raised 

 by the pleading and no evidence has been brought out by the 

 plaintifif.^^^ It is the shipper's duty to disclose any peculiar- 

 ities of the animals not apparent, that would increase the risk 

 of carriage. ^'^^ 



The condition in a contract that the company should not 

 be liable for injury resulting from fear or restiveness was held 

 good where it did not include fear and restiveness occasioned 

 by the company's negligence.^''* Where the plaintiff's agent 

 told the conductor that the animals were frightened and in 

 danger of being hurt and asked to have the car set off at an 

 intermediate station, it was the carrier's duty to comply and 

 it is liable for negligence in not doing so.^'^ 



V. K. & D. M. R. Co., 44 la. 424; Schoenfeld v. Louisv. & N, R. Co., 49 

 La. Ann. go/; South & North Ala. R. Co. v. Henlein, 52 Ala. 606; Evans 

 V. Fitchburg R. Co., in. Mass. 142; Smith v. New Haven & N. R. Co., 12- 

 Allen (Mass.) 531; Louisville, N. O. & T. R. Co. v. Bigger, 66 Miss. 319; 

 Lindsley v. Chic, M. & St. P. R. Co., 36 Minn. 539; Nugent v. Smith, 

 I C. P. D. 423; Blower v. Gt. West. R. Co., L. R. 7 C. P. 655. 



"°Mo. Pac. R. Co. V. Tex. & P. R. Co., 41 Fed. Rep. 913; Indianapolis 

 & St. L. R. Co. V. Jurey, 8 111. App. 160; Chic, R. I. & P. R. Co. v. Har- 

 mon, 12 id. 54; Mo. Pac. R. Co. v. Heath (Tex.), 18 S. W. Rep. 477. 



™ Clarke v. Rochester & S. R. Co., 14 N. Y. 570; Giblin v. Nat. Steam- 

 ship Co., 8 Misc. (N. Y.) 22; Kinnick v. Chic, R. I. & P. R. Co., 69 la. 

 66s; Loeser v. Chic, M. & St. P. R. Co., 94 Wis. 571. 



'" Ft. Worth & D. C. R. Co. v. Greathouse, 82 Tex. 104. 



See Mo. Pac. R. Co. v. Fagan (Tex. Civ. App.), 29 S. W. Rep. mo, 

 where the company was held not liable though its pleadings did not raise 

 the issue. 



™ Hutchinson Carriers § 223. 



"* Moore v. Great Northern R. Co., 10 L. R. Jr. 95. And see, in gen- 

 eral, § III, supra. 



''" Coupland v. Housatonic R. Co., 61 Conn. 531. 



