Winslow, J.
The evidence clearly shows that the transportation of the horses from Oconto to Sidnaw proceeded according to the ordinary and regular course of train. The route from Oconto to Sidnaw was not a continuous line, but a combination of various lines connecting at junctions, but not traversed by any train for the whole distance continuously. At these junctions there were delays of hours at a time, which were indicated upon the scheduled time-tables of the defendant company, and of which shippers must take notice, and which, consequently, can form no ground for a charge •of negligence. Lowe v. E. T., V. & G. R. Co. 90 Ga. 85; Schwab v. Union Line, 18 Mo. App. 159.
The delay at Sidnaw was under somewhat different circumstances. The cars could have been taken along by the train which left them at Sidnaw to the lead of Boyd’s log track, and placed upon that lead just off the main track; but this was not the place where it was understood they were to be placed. The understanding was by all parties that they were to be placed at the further end of the log track, nearly three miles distant. This is the only reasonable construction of the contract of shipment in the light of the surrounding circumstances, and this could not be done by the heavy freight engine drawing the train, because the log track was full of steep grades and curves -and was not fitted for the passage of such an engine. Hor was there any request by those in charge of the horses that the cars be left on the lead. Hence the cars were left at Sidnaw, to be taken to the place of destination by the light switch engine which was there stationed. The evidence is conclusive that this log track was a private track, owned by the Bergland Lumber Company, which concern had, by contract, given the Holt Lumber Company the right to use it for logging operations at the time in question. The plaintiff was about to do logging for the Holt Lumber Company, and on that account only had the right to have his cars placed upon the log [652] track.. The agreement between the Bergland Company and the defendant as to the switching upon this track was that-such switching was only to be done in the. afternoon, because switching in the morning would seriously interfere with the loading of cars, which 'was proceeding at various-places along the track. It was by reason of this agreement, that the plaintiff’s cars were not taken up to the place of destination at the end of the log track until late in the afternoon, and thus it appears that they reached the desired point in due and regular course of train. The Bergland Company, being the owners of the track, certainly had the right to stipulate as to the manner of its use. So we conclude that there was no negligence shown on the part of the defendant in the various delays in transit.
But it is claimed that the defendant should have fed and watered the horses, and was negligent in failing so to do. The evidence shows that the horses did not need to be fed or watered when they stopped at Ironwood, and the only place where it can be reasonably claimed that they should have been fed and watered is at Sidnaw, where they remained from 7 o’clock a. m. until nearly 5 o’clock p. m> The evidence is undisputed that the horses were loaded so-closely head and tail that it was impossible to feed or water them on the cars, and that it would have been necessary to-unload them from the cars for that purpose. The rule of common law is that, in the absence of special contract, the-carrier is bound to feed and water live stock transported by it at proper intervals. 4 Elliott, R. R. § 1553. Special contracts are frequently made by which the owner assumes the duty to feed and water, and such contracts are valid and will be enforced; the duty of the carrier in such case being discharged when it furnishes the owner or person in charge reasonable opportunities for feeding and watering in transit. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485. In the present case the special contract under which the horses were [653] shipped provides that the owner shall “ bear the expense ” of feeding or watering the stock during transportation. This provision varies the common-law duty of the railway company to the extent of its terms reasonably construed, but no more. The extent of that variation in terms is simply that the owner shall bear the expense of feeding and watering. Certainly there is no reasonable construction of those words, considered alone, which would relieve the railway company from the duty of placing the cars where the horses -could be unloaded by the person in charge in a case like the present, where the evidence shows that the horses could not be fed or watered while on the cars. It is argued, however, that because the plaintiff had a man in charge of the horses, who received free transportation in order that he might look after them, the entire contract should be construed as meaning that the man in charge, or owner, assumed the duty of unloading to feed and water the stock, if unloading be necessary for that purpose. Conceding that such should be the proper construction of the contract, the company would still be obliged to furnish upon request the requisite opportunities for unloading the stock preparatory to feeding and watering. Abrams v. M., L. S. & W. R. Co., supra. The owner testifies positively (and his evidence seems to be undisputed on this point) that he told the agent at Sidnaw at 2:30 o’clock p. m. that the horses ought to go somewhere to be fed and watered, and that, if they did not get to their destination before dark, they could.not be unloaded that night. The agent was charged with knowledge that the horses had then been on the cars more than thirty-throe hours, and it seems to us that this statement, though somewhat indefinite, was equivalent to a request that the cars be” placed at some point where such feeding and watering could be done.
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Winslow, J.
The evidence clearly shows that the transportation of the horses from Oconto to Sidnaw proceeded according to the ordinary and regular course of train. The route from Oconto to Sidnaw was not a continuous line, but a combination of various lines connecting at junctions, but not traversed by any train for the whole distance continuously. At these junctions there were delays of hours at a time, which were indicated upon the scheduled time-tables of the defendant company, and of which shippers must take notice, and which, consequently, can form no ground for a charge •of negligence. Lowe v. E. T., V. & G. R. Co. 90 Ga. 85; Schwab v. Union Line, 18 Mo. App. 159.
The delay at Sidnaw was under somewhat different circumstances. The cars could have been taken along by the train which left them at Sidnaw to the lead of Boyd’s log track, and placed upon that lead just off the main track; but this was not the place where it was understood they were to be placed. The understanding was by all parties that they were to be placed at the further end of the log track, nearly three miles distant. This is the only reasonable construction of the contract of shipment in the light of the surrounding circumstances, and this could not be done by the heavy freight engine drawing the train, because the log track was full of steep grades and curves -and was not fitted for the passage of such an engine. Hor was there any request by those in charge of the horses that the cars be left on the lead. Hence the cars were left at Sidnaw, to be taken to the place of destination by the light switch engine which was there stationed. The evidence is conclusive that this log track was a private track, owned by the Bergland Lumber Company, which concern had, by contract, given the Holt Lumber Company the right to use it for logging operations at the time in question. The plaintiff was about to do logging for the Holt Lumber Company, and on that account only had the right to have his cars placed upon the log [652] track.. The agreement between the Bergland Company and the defendant as to the switching upon this track was that-such switching was only to be done in the. afternoon, because switching in the morning would seriously interfere with the loading of cars, which 'was proceeding at various-places along the track. It was by reason of this agreement, that the plaintiff’s cars were not taken up to the place of destination at the end of the log track until late in the afternoon, and thus it appears that they reached the desired point in due and regular course of train. The Bergland Company, being the owners of the track, certainly had the right to stipulate as to the manner of its use. So we conclude that there was no negligence shown on the part of the defendant in the various delays in transit.
But it is claimed that the defendant should have fed and watered the horses, and was negligent in failing so to do. The evidence shows that the horses did not need to be fed or watered when they stopped at Ironwood, and the only place where it can be reasonably claimed that they should have been fed and watered is at Sidnaw, where they remained from 7 o’clock a. m. until nearly 5 o’clock p. m> The evidence is undisputed that the horses were loaded so-closely head and tail that it was impossible to feed or water them on the cars, and that it would have been necessary to-unload them from the cars for that purpose. The rule of common law is that, in the absence of special contract, the-carrier is bound to feed and water live stock transported by it at proper intervals. 4 Elliott, R. R. § 1553. Special contracts are frequently made by which the owner assumes the duty to feed and water, and such contracts are valid and will be enforced; the duty of the carrier in such case being discharged when it furnishes the owner or person in charge reasonable opportunities for feeding and watering in transit. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485. In the present case the special contract under which the horses were [653] shipped provides that the owner shall “ bear the expense ” of feeding or watering the stock during transportation. This provision varies the common-law duty of the railway company to the extent of its terms reasonably construed, but no more. The extent of that variation in terms is simply that the owner shall bear the expense of feeding and watering. Certainly there is no reasonable construction of those words, considered alone, which would relieve the railway company from the duty of placing the cars where the horses -could be unloaded by the person in charge in a case like the present, where the evidence shows that the horses could not be fed or watered while on the cars. It is argued, however, that because the plaintiff had a man in charge of the horses, who received free transportation in order that he might look after them, the entire contract should be construed as meaning that the man in charge, or owner, assumed the duty of unloading to feed and water the stock, if unloading be necessary for that purpose. Conceding that such should be the proper construction of the contract, the company would still be obliged to furnish upon request the requisite opportunities for unloading the stock preparatory to feeding and watering. Abrams v. M., L. S. & W. R. Co., supra. The owner testifies positively (and his evidence seems to be undisputed on this point) that he told the agent at Sidnaw at 2:30 o’clock p. m. that the horses ought to go somewhere to be fed and watered, and that, if they did not get to their destination before dark, they could.not be unloaded that night. The agent was charged with knowledge that the horses had then been on the cars more than thirty-throe hours, and it seems to us that this statement, though somewhat indefinite, was equivalent to a request that the cars be” placed at some point where such feeding and watering could be done.
Another consideration arises here, however, which does not seem to have' been called to the attention of the trial [654] court. This was an interstate contract of carriage. Sec. 4386 of the Revised Statutes of the United States provides, in substance, that no railroad company carrying cattle, sheep, swine, or other animals from one state to another shall confine the same in cars for a longer period than twenty-eight consecutive hours without unloading the same for rest, water, and feeding for a period of five consecutive hours, unless prevented from so doing by storm or other accidental cause. Sec. 4381 provides that the owner or person in charge of the stock shall feed and water the same when so unloaded, and, if he fails so to do, the railroad company shall feed and water them at the expense of the owner or person in charge, and have a lien on the animals therefor. Subsequent sections provide for the recovery of a penalty by action in the name of the United States for failure to comply with any of the provisions of the two sections. There can be no-doubt of the application of these sections to the present case. Under them it became the duty of the railroad company in this case to unload the horses for a rest of five hours at 9 o’clock a. m. on the morning of the 8th, while they were waiting at Sidnaw, and this duty depended on no demand or request by the owner. The law was doubtless passed for humanitarian reasons largely, but also evidently for the protection of owners of stock transported. It imposes a duty on the railroad company for the benefit of such owners, and, under familiar principles, failure to perform such duty constitutes actionable negligence at the suit of an owner who is injured thereby. Nor does the fact that a penalty is imposed for breach of such duty take the place of a civil action based on the negligence, unless such penalty be given to the injured party in satisfaction for the injury. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360; Klatt v. N. C. Foster L. Co. 97 Wis. 641. Actions for negligence, based upon the nonperformance of this statutory duty, have been sustained by the courts of last resort in Massachusetts and Yirginia. [655] upon very satisfactory reasoning. Brockway v. Am. Exp. Co. 168 Mass. 257; Chesapeake & O. R. Co. v. Am. Exch. Bank, 92 Va. 495. In the first of these cases it. is said: “ Under the statute above referred to it was the duty of the railroad company to unload and feed and water them [the stock] without a request from their custodian if he failed to do it.” And it was further held in that case that a failure to perform such duty might become gross negligence. It is evident, therefore, that there was sufficient proof in the present case to take the case to the jury upon the question of negligence on the part of the railroad company.
But it is strenuously claimed that the evidence shows- contributory negligence on the part of the plaintiff, both in failing to attempt to unload and care for the horses at Sid-naw and in failing to unload them at night after they reached their destination. We are unable to say that contributory negligence appears, as a matter of law, at either place. At Sidnaw the evidence of the plaintiff shows that up to 2:30 o’clock p. m. the persons in charge of the horses were put off with promises that the cars would be presently forwarded; and it seems unreasonable to say that it was necessarily negligence for the plaintiff to rely on such promises, or to omit an attempt to unload and care for the horses when only two hours remained in which to do it. As to the failure to unload the horses after they reached their destination, the evidence shows that it was dark and snowy; that the stopping place was in the woods, nearly or quite half a mile from the logging camp, where there were no conveniences for unloading, but where temporary platforms for that purpose would have to be erected. There was also evidence tending to show that to attempt to unload them after dark upon a temporary platform was a hazardous undertaking, in the course’ of which the horses would be liable to break their legs or otherwise injure themselves. Upon the whole evidence we think it was a proper question for the jury [656] whether the plaintiff, in waiting until daylight before unloading the horses, was guilty of contributory negligence.
No other questions are necessary to be considered.
By the Court.— Judgment reversed, and action remanded for a new trial.