Braley, J.
The defendant on January 15, 1918, engaged to forward from Cedar Rapids, Iowa, to the plaintiff as consignee at Northampton, Massachusetts, “subject to the classifications and tariffs in effect on the date hereof ... for the sum named in . . . this contract ... 28 head Commercial horses,” which during transportation were accompanied as far as Chicago, Illinois, by the shipper, one Woodworth, and from there to Northampton by one Reed, each of whom acted as the plaintiff’s agent. The horses were shipped one hour before midnight January 15, 1918, and were delivered about nine o’clock A. M. January 22, 1918. A short time after delivery three horses became ill from pneumonia, and one from purpura, resulting in their death, while the remainder were emaciated and much reduced in value. The action is brought to recover damages for the loss and depreciation, alleged in the declaration to have been caused by the negligence of the defendant.
The record shows and the jury could find, that previous to and at the time of shipment “weather conditions were extremely bad all through the middle west,” and “that the war and war conditions arising therefrom seriously interfered with moving of traffic.” The defendant in connection with this evidence offered a certified copy of the order of the United States Fuel Administration issued January 17, 1918, which was excluded subject to its exception. The evidence was irrelevant. The order not only was issued subsequent to the date of the contract and after performance had been begun, but the use of coal by railroads, which were given a preference over necessary current requirements, was not limited by [177]*177the order. West v. New York, New Haven, & Hartford Railroad, 233 Mass. 162. The defendant as a common carrier (Brockway v. American Express Co. 168 Mass. 257, 259), having accepted the horses for transportation, the fact of governmental control is not under the circumstances a defence. Illinois Central Railroad v. Cobb, Christy & Co. 64 Ill. 128, 139.
The defendant’s next exceptions are to the admission of conversations between Woodworth and the company’s agents relating to the shipment and continuance of transportation. The substance of the first talk was, that Woodworth having said he was ready to leave Cedar Rapids, the agent replied, "it was not safe to go, and that he would have to wait a while,” and finally on January 15, 1918, informed him, “that the defendant could give a good shipment and run.” The second talk was after the horses arrived at Chicago and before Reed succeeded Woodworth as attendant. It appears that the defendant’s agent had received notice of the shipment and, the car having arrived at 10:10 A. M., the agent said that he “promised to get the horses out of Chicago on the train leaving at 10:30 A. M.” The first conversation did not vary the terms of the contract. It merely explained the climatic conditions when performance of the contract was begun. Dondis v. Borden, 230 Mass. 73, 79, 80. The second conversation was an act of the defendant in connection with the transportation. Emery & Co. Inc. v. Boston & Maine Railroad, 230 Mass. 463. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. Lane v. Boston & Albany Railroad, 112 Mass. 455.
The defendant also excepted to the following hypothetical .question, asked of a veterinarian whose qualifications as an expert are not questioned: “Assuming that these horses were placed in the car at Cedar Rapids about 11:30 P.M. on January 15th, and were unloaded at Northampton at nine o’clock January 22d, thus being on the journey one hundred and fifty-two and one-half hours, approximately, six days and a half; that they were unloaded, fed and watered three times within this period, at Cleveland, Buffalo, and Albany; and that the weather at the time of such unloading was cold winter weather, and that they were in the car without food or water for long periods, what would be the effect of such treatment upon the health of the horses?” The question should have been excluded. While counsel in framing a hypothet[178]*178ical question can assume the existence of facts which the jury have a right to find upon the evidence, and the recital may be partisan, yet an assumption of fact cannot be made upon which liability may be predicated where as matter of law the defendant by the terms of the contract on which the right of recovery rests is exonerated from such responsibility. Anderson v. Albertstamm, 176 Mass. 87. Murphy v. Marston Coal Co. 183 Mass. 385, 388. Carroll v. Boston Elevated Railway, 200 Mass. 527. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, 365. The horses were attended throughout by an agent of the plaintiff, and under section five, where the “animals are accompanied by the owner or an attendant in his employ, the following further conditions shall apply, viz: The Shipper agrees to load, transship and unload said animals at his own risk, the Express Company furnishing the necessary laborers to assist. The Shipper shall take care of, feed and water said animals while being forwarded or transported, whether delayed in transit or otherwise, and the Express Company shall not be under any liability of duty with reference thereto except in the actual forwarding thereof. The Shipper further undertakes to see that all doors and openings in the cars in which said animals are shipped are at .all times so closed and fastened as to prevent the escape of any of said animals or injury thereto, . . . resulting from open doors or defective ventilation.” If the horses “were in the car without food or water for long periods,” as the question in part assumes and as the jury could find, the duty of supplying them with sufficient and proper sustenance devolved on the plaintiff.
It was a question of fact however whether the horses had contracted colds or pneumonia or purpura through the defendant’s negligence as alleged in the declaration and set forth in the specifications. Sager v. Portsmouth, S.& P.& E. Railroad,, 31 Maine, 228. Feinberg v. Delaware, Lackawanna & Western Railroad, 23 Vroom, 451. Southern Pacific Co. v. Arnett, 50 C. C. A. 17, 4 R. C. L. Carriers, § 348, and cases cited. The record shows and without any objection being made or exception taken by the defendant, the judge stated in his instructions, “I do not understand there is any controversy here between the parties but that this was intended to be an express shipment of horses.” And there was evidence which warranted the jury in finding that the transportation had [179]*179been unnecessarily delayed, and the car allowed to remain on side tracks for unreasonably long periods, exposing the horses to severe cold weather, and that instead of being shipped through from Chicago they were unloaded and reshipped in Cleveland, Buffalo and Albany. The jury, notwithstanding the erroneous admission of the question, were accurately instructed, that “You will find a provision in the bill of lading that where horses are to be accompanied by an attendant—and they were to be in this case—within that clause, the care of the horses rests with the attendant and not with the defendant; and I do not understand there is any claim made by the plaintiff in this case that there was any lack of care of that kind on the part of the defendant. The complaint of the plaintiff ...
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Braley, J.
The defendant on January 15, 1918, engaged to forward from Cedar Rapids, Iowa, to the plaintiff as consignee at Northampton, Massachusetts, “subject to the classifications and tariffs in effect on the date hereof ... for the sum named in . . . this contract ... 28 head Commercial horses,” which during transportation were accompanied as far as Chicago, Illinois, by the shipper, one Woodworth, and from there to Northampton by one Reed, each of whom acted as the plaintiff’s agent. The horses were shipped one hour before midnight January 15, 1918, and were delivered about nine o’clock A. M. January 22, 1918. A short time after delivery three horses became ill from pneumonia, and one from purpura, resulting in their death, while the remainder were emaciated and much reduced in value. The action is brought to recover damages for the loss and depreciation, alleged in the declaration to have been caused by the negligence of the defendant.
The record shows and the jury could find, that previous to and at the time of shipment “weather conditions were extremely bad all through the middle west,” and “that the war and war conditions arising therefrom seriously interfered with moving of traffic.” The defendant in connection with this evidence offered a certified copy of the order of the United States Fuel Administration issued January 17, 1918, which was excluded subject to its exception. The evidence was irrelevant. The order not only was issued subsequent to the date of the contract and after performance had been begun, but the use of coal by railroads, which were given a preference over necessary current requirements, was not limited by [177]*177the order. West v. New York, New Haven, & Hartford Railroad, 233 Mass. 162. The defendant as a common carrier (Brockway v. American Express Co. 168 Mass. 257, 259), having accepted the horses for transportation, the fact of governmental control is not under the circumstances a defence. Illinois Central Railroad v. Cobb, Christy & Co. 64 Ill. 128, 139.
The defendant’s next exceptions are to the admission of conversations between Woodworth and the company’s agents relating to the shipment and continuance of transportation. The substance of the first talk was, that Woodworth having said he was ready to leave Cedar Rapids, the agent replied, "it was not safe to go, and that he would have to wait a while,” and finally on January 15, 1918, informed him, “that the defendant could give a good shipment and run.” The second talk was after the horses arrived at Chicago and before Reed succeeded Woodworth as attendant. It appears that the defendant’s agent had received notice of the shipment and, the car having arrived at 10:10 A. M., the agent said that he “promised to get the horses out of Chicago on the train leaving at 10:30 A. M.” The first conversation did not vary the terms of the contract. It merely explained the climatic conditions when performance of the contract was begun. Dondis v. Borden, 230 Mass. 73, 79, 80. The second conversation was an act of the defendant in connection with the transportation. Emery & Co. Inc. v. Boston & Maine Railroad, 230 Mass. 463. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. Lane v. Boston & Albany Railroad, 112 Mass. 455.
The defendant also excepted to the following hypothetical .question, asked of a veterinarian whose qualifications as an expert are not questioned: “Assuming that these horses were placed in the car at Cedar Rapids about 11:30 P.M. on January 15th, and were unloaded at Northampton at nine o’clock January 22d, thus being on the journey one hundred and fifty-two and one-half hours, approximately, six days and a half; that they were unloaded, fed and watered three times within this period, at Cleveland, Buffalo, and Albany; and that the weather at the time of such unloading was cold winter weather, and that they were in the car without food or water for long periods, what would be the effect of such treatment upon the health of the horses?” The question should have been excluded. While counsel in framing a hypothet[178]*178ical question can assume the existence of facts which the jury have a right to find upon the evidence, and the recital may be partisan, yet an assumption of fact cannot be made upon which liability may be predicated where as matter of law the defendant by the terms of the contract on which the right of recovery rests is exonerated from such responsibility. Anderson v. Albertstamm, 176 Mass. 87. Murphy v. Marston Coal Co. 183 Mass. 385, 388. Carroll v. Boston Elevated Railway, 200 Mass. 527. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, 365. The horses were attended throughout by an agent of the plaintiff, and under section five, where the “animals are accompanied by the owner or an attendant in his employ, the following further conditions shall apply, viz: The Shipper agrees to load, transship and unload said animals at his own risk, the Express Company furnishing the necessary laborers to assist. The Shipper shall take care of, feed and water said animals while being forwarded or transported, whether delayed in transit or otherwise, and the Express Company shall not be under any liability of duty with reference thereto except in the actual forwarding thereof. The Shipper further undertakes to see that all doors and openings in the cars in which said animals are shipped are at .all times so closed and fastened as to prevent the escape of any of said animals or injury thereto, . . . resulting from open doors or defective ventilation.” If the horses “were in the car without food or water for long periods,” as the question in part assumes and as the jury could find, the duty of supplying them with sufficient and proper sustenance devolved on the plaintiff.
It was a question of fact however whether the horses had contracted colds or pneumonia or purpura through the defendant’s negligence as alleged in the declaration and set forth in the specifications. Sager v. Portsmouth, S.& P.& E. Railroad,, 31 Maine, 228. Feinberg v. Delaware, Lackawanna & Western Railroad, 23 Vroom, 451. Southern Pacific Co. v. Arnett, 50 C. C. A. 17, 4 R. C. L. Carriers, § 348, and cases cited. The record shows and without any objection being made or exception taken by the defendant, the judge stated in his instructions, “I do not understand there is any controversy here between the parties but that this was intended to be an express shipment of horses.” And there was evidence which warranted the jury in finding that the transportation had [179]*179been unnecessarily delayed, and the car allowed to remain on side tracks for unreasonably long periods, exposing the horses to severe cold weather, and that instead of being shipped through from Chicago they were unloaded and reshipped in Cleveland, Buffalo and Albany. The jury, notwithstanding the erroneous admission of the question, were accurately instructed, that “You will find a provision in the bill of lading that where horses are to be accompanied by an attendant—and they were to be in this case—within that clause, the care of the horses rests with the attendant and not with the defendant; and I do not understand there is any claim made by the plaintiff in this case that there was any lack of care of that kind on the part of the defendant. The complaint of the plaintiff ... is, that there were unreasonable delays in the course of transshipment, and that those unreasonable delays and the keeping of the horses upon the side tracks . . . subjected them to a danger from which they suffered, the danger of the reduction of then resistance to disease, and rendering them incapable of resisting as well as they otherwise might, and so leading to the actual contraction of disease by them due to the delay under the circumstances of climate and everything else at the time of this shipment.” And at the close of the charge and after conference with counsel the judge further said: “If the jury find that the horses in this shipment were accompanied by an attendant in the employ of the shipper under the terms of the contract of shipment, and if the shipper agreed that this attendant should load, transship and unload said horses at his own risk, and further if disease was contracted by the horses while in the process of being loaded, transshipped or unloaded the defendant is not liable.” To which instructions the defendant did not except. We are therefore of opinion that “the error complained of has not injuriously affected the substantial rights” of the defendant, and a new trial on this ground should not be granted. St. 1913, c. 716, § 1.
The defendant’s fourth request is sufficiently covered by the instructions. The bill of lading having contained no limit of time for completion of the transportation, the defendant was required to perform within a reasonable time. The jury were told to consider the mode of conveyance, the distance, the nature of the shipment, the season of the year, the conditions of the weather, and the means of transportation and to determine whether the. [180]*180defendant had used reasonable diligence or whether it had been guilty of inexcusable delay.
The seventeenth request also was substantially given. The jury were accurately instructed, "You have got to get at what were reasonable conditions, what did actually take place. Did the defendant and its servants do what a reasonably prudent and careful man would have done to carry out the contract which it had undertaken, which was to deliver these horses within a reasonable time, and ‘reasonable time’ meaning for the kind of shipment which the parties contemplated at the time the horses were delivered to the defendant to be shipped?” Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 286, 287. Colsch v. Chicago, Milwaukee & St. Paul Railway, 149 Iowa, 176. Wilke v. Illinois Central Railroad, 153 Iowa, 695.
The exceptions accordingly should be overruled.
So ordered.