Lotz, J.
The appellee shipped three horses over the appellant’s railway, extending from Lawrence to Osgood, within the State of Indiana. One of the horses was injured in transit. This action was brought to recover the damages sustained.
The first paragraph of complaint avers that the defendant undertook to carry certain horses belonging to the plaintiff, of the value of $5,000; that the plaintiff agreed to deliver the horses at Osgood in good and safe condition; but that in shipping the horses the defendant, by its agents and servants, carelessly and negligently ran an engine and train of cars against the car in which the horses were being shipped, with such force and violence, that one of the horses was thrown upon the floor of the car, thereby wounding and forever disabling such horse, ■ to the plaintiff’s damage in the sum of $1,500.
The second paragraph alleges that the plaintiff shipped the horses over defendant’s road and agreed to and did pay a freight charge therefor, in consideration of which the defendant undertook to safely carry the horse from Bedford to Osgood; that the defendant did not safely carry said horses, but permitted one of them to become crippled and disabled while in transit, [408]*408all without the fault of the plaintiff and to his damage in $1,500.
The appellant insists that the first paragraph is bad because it does not aver that the particular horse injured was of any value, and that the second is bad because it does not aver that any of the horses were of any value.
Each paragraph, however, does aver that a horse was injured, and that the plaintiff sustained damages on account thereof in the sum of $1,500. The word “damages,” as here used, imports a pecuniary loss. To say that damages flow from an injury done to specific property, implies that the property injured is valuable. The objections are not well taken.
The appellant filed an answer in two paragraphs. The first was a general denial. The second averred, in substance, that the horses were shipped in pursuance of a special written contract or bill of lading duly executed between the plaintiff and defendant, in which it was stipulated, among other things, “that said company shall in no case be liable to answer for damages on account of accident, delay, loss or injuries to said stock, unless such accident, delay, loss or injuries shall have been caused by the gross and wanton negligence of said company’s agents or servants; ” and that in consideration of certain risks, duties and liabilities assumed by the shipper, the defendant would ship the stock at greatly reduced rates, of which plaintiff elected to avail himself; and, it was further stipulated, “that in case of any loss or damage on its line for which the party of the first part may be responsible under this contract, such responsibility shall be and is hereby limited to $100, for each horse, mule, or jack. * > * * * Said sums are agreed upon as a maximum valuation of the stock shipped; but in no case shall this company be lia[409]*409ble for a greater amount than the actual value of the animal at tbe time and place of shipment; and all loss and damage which may occur to said stock from whatever cause, for which claim is not made in writing within ten days and before said stock is mingled with others, to the general freight agent of the party of the first part, is hereby released and forever discharged; and no action on this contract, or to recover damages on account of delay or loss or injuries to said stock, shall be brought after six months from the date.”
It is further averred that no claim in writing was made within ten days, nor at any time. The pleading concludes by asking that the plaintiff take nothing and that the defendant recover his costs.
A demurrer for want of facts was sustained to this paragraph, and this is one of the errors assigned.
It is the law in this State, that a common carrier cannot, by contract, screen himself from liability growing out of his own negligent or tortious conduct, or that of his agents or servants. Such contracts are against public policy, for if permitted they might put an end to all liability and encourage carelessness. Ohio & Miss. R. W. Co. v. Selby, 47 Ind. 471; Wood Railroads, 1885.
Nor can the carrier, in such cases, limit the amount of the recovery. Railway Co. v. Wynn, 88 Tenn. 320. Although he may agree with the shipper beforehand upon the value of the property, which value shall be conclusive as to the carrier’s liability in case the goods are lost. Hart v. Pennsylvania Co., 112 U. S. 331.
In the case last cited the bill of lading contained this stipulation: “on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding $200 each, etc.”
There are also cases which hold that, if the bill of [410]*410lading contain a provision fairly entered into, limiting the carrier’s liability at a given sum for each of several animals, and such limitation is based upon a reduction in the charge made for the transportation, such limitation is valid, although the actual value of each animal is much larger and the loss is the result of the carrier’s negligence. St. Louis, etc., R. W. Co. v. Weakly, 50 Ark. 397; Squire v. N. Y. Cent. R. R. Co., 98 Mass. 239; Richmond, etc., R. R. Co. v. Payne, 86 Va. 481 (6 L. R. A. 849). Whether or not this rule prevails in this State it is unnecessary for us to determine in the decision of this case.
The carrier may also lawfully stipulate that any claim for damages growing out of the carrier’s negligence shall be made within a reasonable time; and ten days has been held to be a reasonable time. Case v. Cleveland, etc., R. W. Co., 11 Ind. App. 517.
The paragraph of answer under consideration states a good defense, in so far as it pleads a special contract in bar of the implied or common law liability declared on in the complaint, and this rule applies to each stipulation and its breach. It is also good in so far as it pleads' that no claim in writing was ’ made within ten days. But in so far as it attempts to plead a limitation upon the liability of $100, it is insufficient, for it purports to answer the whole complaint and to defeat a recovery entirely. It is not averred that the horse injured was of no value. A full defense founded upon this clause of the contract cannot be good, unless it avers that the property injured was of no value, for it admits a partial liability.
Conceding that the paragraph was sufficient, was it reversible error to sustain a demurrer to it ?
The complaint declares upon the common law liability. It did not' declare upon the special contract, the bill of [411]*411lading. It seems to be .settled by the decisions in this State, that if the shipper declares upon an implied contract, or the common law liability, and it appears that the shipment was made in pursuance of a special .contract or bill of lading, he must fail. The moment it appears that the contract is a special one, and was not an implied one, there is a fatal variance, and it would be the duty of the court to instruct or find for the defendant. Indianapolis, etc., R. W. Co. v. Forsythe, 4 Ind. App. 326; Hall v. Pennsylvania Co., 90 Ind. 459.
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Lotz, J.
The appellee shipped three horses over the appellant’s railway, extending from Lawrence to Osgood, within the State of Indiana. One of the horses was injured in transit. This action was brought to recover the damages sustained.
The first paragraph of complaint avers that the defendant undertook to carry certain horses belonging to the plaintiff, of the value of $5,000; that the plaintiff agreed to deliver the horses at Osgood in good and safe condition; but that in shipping the horses the defendant, by its agents and servants, carelessly and negligently ran an engine and train of cars against the car in which the horses were being shipped, with such force and violence, that one of the horses was thrown upon the floor of the car, thereby wounding and forever disabling such horse, ■ to the plaintiff’s damage in the sum of $1,500.
The second paragraph alleges that the plaintiff shipped the horses over defendant’s road and agreed to and did pay a freight charge therefor, in consideration of which the defendant undertook to safely carry the horse from Bedford to Osgood; that the defendant did not safely carry said horses, but permitted one of them to become crippled and disabled while in transit, [408]*408all without the fault of the plaintiff and to his damage in $1,500.
The appellant insists that the first paragraph is bad because it does not aver that the particular horse injured was of any value, and that the second is bad because it does not aver that any of the horses were of any value.
Each paragraph, however, does aver that a horse was injured, and that the plaintiff sustained damages on account thereof in the sum of $1,500. The word “damages,” as here used, imports a pecuniary loss. To say that damages flow from an injury done to specific property, implies that the property injured is valuable. The objections are not well taken.
The appellant filed an answer in two paragraphs. The first was a general denial. The second averred, in substance, that the horses were shipped in pursuance of a special written contract or bill of lading duly executed between the plaintiff and defendant, in which it was stipulated, among other things, “that said company shall in no case be liable to answer for damages on account of accident, delay, loss or injuries to said stock, unless such accident, delay, loss or injuries shall have been caused by the gross and wanton negligence of said company’s agents or servants; ” and that in consideration of certain risks, duties and liabilities assumed by the shipper, the defendant would ship the stock at greatly reduced rates, of which plaintiff elected to avail himself; and, it was further stipulated, “that in case of any loss or damage on its line for which the party of the first part may be responsible under this contract, such responsibility shall be and is hereby limited to $100, for each horse, mule, or jack. * > * * * Said sums are agreed upon as a maximum valuation of the stock shipped; but in no case shall this company be lia[409]*409ble for a greater amount than the actual value of the animal at tbe time and place of shipment; and all loss and damage which may occur to said stock from whatever cause, for which claim is not made in writing within ten days and before said stock is mingled with others, to the general freight agent of the party of the first part, is hereby released and forever discharged; and no action on this contract, or to recover damages on account of delay or loss or injuries to said stock, shall be brought after six months from the date.”
It is further averred that no claim in writing was made within ten days, nor at any time. The pleading concludes by asking that the plaintiff take nothing and that the defendant recover his costs.
A demurrer for want of facts was sustained to this paragraph, and this is one of the errors assigned.
It is the law in this State, that a common carrier cannot, by contract, screen himself from liability growing out of his own negligent or tortious conduct, or that of his agents or servants. Such contracts are against public policy, for if permitted they might put an end to all liability and encourage carelessness. Ohio & Miss. R. W. Co. v. Selby, 47 Ind. 471; Wood Railroads, 1885.
Nor can the carrier, in such cases, limit the amount of the recovery. Railway Co. v. Wynn, 88 Tenn. 320. Although he may agree with the shipper beforehand upon the value of the property, which value shall be conclusive as to the carrier’s liability in case the goods are lost. Hart v. Pennsylvania Co., 112 U. S. 331.
In the case last cited the bill of lading contained this stipulation: “on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding $200 each, etc.”
There are also cases which hold that, if the bill of [410]*410lading contain a provision fairly entered into, limiting the carrier’s liability at a given sum for each of several animals, and such limitation is based upon a reduction in the charge made for the transportation, such limitation is valid, although the actual value of each animal is much larger and the loss is the result of the carrier’s negligence. St. Louis, etc., R. W. Co. v. Weakly, 50 Ark. 397; Squire v. N. Y. Cent. R. R. Co., 98 Mass. 239; Richmond, etc., R. R. Co. v. Payne, 86 Va. 481 (6 L. R. A. 849). Whether or not this rule prevails in this State it is unnecessary for us to determine in the decision of this case.
The carrier may also lawfully stipulate that any claim for damages growing out of the carrier’s negligence shall be made within a reasonable time; and ten days has been held to be a reasonable time. Case v. Cleveland, etc., R. W. Co., 11 Ind. App. 517.
The paragraph of answer under consideration states a good defense, in so far as it pleads a special contract in bar of the implied or common law liability declared on in the complaint, and this rule applies to each stipulation and its breach. It is also good in so far as it pleads' that no claim in writing was ’ made within ten days. But in so far as it attempts to plead a limitation upon the liability of $100, it is insufficient, for it purports to answer the whole complaint and to defeat a recovery entirely. It is not averred that the horse injured was of no value. A full defense founded upon this clause of the contract cannot be good, unless it avers that the property injured was of no value, for it admits a partial liability.
Conceding that the paragraph was sufficient, was it reversible error to sustain a demurrer to it ?
The complaint declares upon the common law liability. It did not' declare upon the special contract, the bill of [411]*411lading. It seems to be .settled by the decisions in this State, that if the shipper declares upon an implied contract, or the common law liability, and it appears that the shipment was made in pursuance of a special .contract or bill of lading, he must fail. The moment it appears that the contract is a special one, and was not an implied one, there is a fatal variance, and it would be the duty of the court to instruct or find for the defendant. Indianapolis, etc., R. W. Co. v. Forsythe, 4 Ind. App. 326; Hall v. Pennsylvania Co., 90 Ind. 459.
The defendant may show, under the general denial, that it is not liable upon an implied contract, but that the obligation arose out of a special contract. It was so expressly ruled by this court in Crum v. Yundt, 12 Ind. App. 308.
The action was not on the special contract. Was it therefore necessary to answer this breach specially ? If so, then it was reversible error to sustain the demurrer. But,' as we have seen, a special contract of itself defeats the action without more. The ten day limitation is a special contract, the release from liability is a special contract. The moment it was made to appear that there was a special contract the plaintiff would have been defeated without reference as to whether he had complied with these stipulations. It was not necessary therefore to specially plead these stipulations and their breach in order that the defendant might avail itself of this defense.' It could be given under the general denial. The second paragraph did not contain anything but what might have been given under the general denial. It was not reversible error to sustain the demurrer to it. The appellant was not harmed thereby, for it could have made the same proof under another paragraph.
The record does not contain the evidence in full, only [412]*412the brief notes made by tbe presiding judge are embodied in it. It does not appear from this evidence tbat any special contract or bill of lading was given in evidence. There being a failure to show a special contract, tbe recovery must be presumed to have been upon tbe common law liability.
Filed February 19, 1896.
Several objections are made to tbe special findings of tbe court, but tbe findings are sufficient to support a judgment upon tbe common law liability.
We find no reversible error in tbe record.
Judgment affirmed.