Christiancy, J.
This was an action of assumpsit, brought by the defendants in error, against the railroad company.
The first count of the plaintiffs’ declaration alleges a contract by which the company undertook and promised the plaintiffs to take care of, and safely and securely, and without unnecessary or unreasonable delay, to carry and convey certain cattle and certain hogs, from Coldwater, in this State, to Detroit, and there safely, securely, expeditiously, and without unnecessary and unreasonable delay, to deliver the same to the plaintiffs; and alleged as a breach, substantially, that defendants did not take care of, nor safely, etc., deliver the property as aforesaid; but were guilty of such unnecessary and unreasonable delay, that the property was kept in the railroad cars for a long space of time on the route, and kept confined in the cars after their arrival at Detroit for twenty-four hours, whereby said cattle and hogs were greatly injured and depreciated in value, etc., by loss of flesh, and reduced and shrunk in weight, and one of said cattle, and a large number of the hogs died and were lost, and others of the hogs became sick and lame, and were rendered of little value.
The second count was the same in form, upon a. [188]*188contract for the carrying of certain cattle and hogs from "Hillsdale to Detroit, and the third count the same in form upon a contract for carrying certain cattle and hogs from Osseo to Detroit — thus, in all the counts claiming to recover upon the strict common-law liability of common carriers. The first and main question in the case is, whether there was any evidence tending to prove the contract set up in the declaration. And whether the contract be special, and expressly agreed upon by the parties, or whether it be one which the law implies from the facts and circumstances, it must, in the one case as well as in the other, be proved upon the trial, to entitle the plaintiff to recover; the only difference in this respect, being in the mode of proof; in the first case, the proof showing what was actually agreed upon; in the second, the facts and circumstances which create the duty from which the defendants’ promise is implied by the law. And if the facts and circumstances shown in the latter case fail to show the particular duty alleged as the promise of the defendant, or show a different duty, and therefore a different promise, such failure or such variance will be -just as fatal to the plaintiff on the trial as a failure to prove an express contract, or the proof of a different contract from that alleged.
As the plaintiffs did not seek to prove an express contract in support of their declaration, it devolved upon them to prove the delivery of the property to the company and their acceptance of it, under circumstances from which the law implies the contract declared upon; and this could only be done by showing that the company received the property as common carriers, that is to say, under circumstances which made it their duty to take care of the property in its transportation and delivery, and to protect it from all injury and loss not occasioned by the act of God or of the [189]*189public enemy — or at least, from all loss or injury which, in this mode of transporting this kind of property, might be avoided by human agency. It is unnecessary to dismiss the question of proof upon any other feature of the contract alleged, since, if proved in all other respects, but not in this, the contract alleged, being an entire thing, is not proved.
For the purposes of this case it may be assumed that this company, by their charter and act of consolidation, are required to take upon themselves the business of common carriers, and to transport, as such, all such property tendered to them for that purpose as was usually transported by railroads, as common carriers, at the date of the charter of the Michigan Southern Railroad Company in 1846, and any other kinds of property which, in the progress of invention and business, might be tendered for such carriage, which should not, from its nature, impose risks of a different character, or require an essentially different mode of managing their road, or the incurring of extra expenses on account of the different character of such new hinds of property.
But the transportation of cattle and live stock by common carriers by land was unknown to the common law, when the duties and responsibilities of common carriers were fixed, making them insurers against all losses and injuries not arising from the act of G-od or of the public enemies. These responsibilities and duties were fixed with reference to kinds of property involving, in their transportation, much fewer risks, and of quite a different kind, from those which are incident to the transportation of live stock by railroad. Animals have wants of their own to be supplied; and this is a mode of conveyance at which, from their nature and habits, most animals instinctively revolt; and cattle especially, crowded in a dense mass, frightened [190]*190by the noise of the engine, the rattling, jolting, and frequent concussions of the cars, in their frenzy injure each other by trampling, plunging, goring, or throwing down; and frequently, on long -routes, their strength exhausted by hunger and thirst, fatigue and fright, the weak easily fall and are trampled upon, and unless helped up, must soon die. Hogs also swelter and perish.—See per Parke, Baron, in Carr v. Lancashire & Y. Railway Co., 7 Exch. 712, 713; Denio, J. in Clarke v. Rochester & S. R. R. Co., 14 N. Y., 573. It is a mode of transportation which, but for its necessity, would be gross cruelty and indictable as such. The risk may be greatly lessened by care and vigilance, by feeding and watering at proper intervals, by getting up those that are down, and otherwise. But this imposes a degree of care and an amount of labor so different from what is required in reference to other kinds of property, that I do not think this kind of property falls within the reasons upon which the common-law liability of common carriers was fixed. In M’Manus v. Lancashire Railway Co., 2 Hurl. & Norman, 702, the Court say: “We are able to decide this case without referring to the second point made by the defendants, viz: the alleged distinction between the liability of carriers as to the conveyance of horses and live stock, and ordinary goods; biit should the question ever arise, we think the observation which fell from Baron Parke, in Carr v. Lancashire & York Railway Company, is entitled to much consideration.” In the same case on appeal in the Exchequer Chamber, 4 Hurls. & Norman, 346, Barle, J., speaking of the condition of the contract in that case, says: “This condition is imposed in respect of horses. And I find neither authority nor principle for holding that defendants were bound to receive living animals, as common carriers.”
In Palmer v. Grand Junction Railway Co., 4 M. &. W., [191]*191758, Parke, Baron, interrupting counsel, asks: “Does the rule as to negligence apply to live animals, as horses? Of course, if they are stolen, it would; but is it so when they are delivered, although hurt or damaged? If misdelivered the carrier would be liable; but they would not be liable for a mere accident to an animal, supposing the carriage to be safe and good and properly conducted.” This case was decided in 1839, when the question was comparatively a new one. And it is quite manifest that Baron Parke, in the above remarks, had reference to the question as one of’ common law merely ; and when he comes to decide the case (on pp. 767, 768), holding that if the company choose to carry (horses), and do not take care to accept them with a limited responsibility, then, by accepting them, they must be held to have accepted as common carriers, it is equally manifest that the decision is rested wholly upon the statute which he cites, expressly enumerating “cattle” with “other goods, wares, and merchandise articles, matters and things,” which the company were authorized to carry, placing all apparently upon the same ground. The conclusion from the statute would seem to have been quite as broad, at least, as the premises would warrant. But it had the statute, such as it was, to rest upon. It may, however, well be doubted, whether the decision would have been the same if the question had arisen for the first time after, the decision in Oxlade v. North East. R. Co., 15, C. B. (N. S.) 680, to be hereafter-noticed, and that of Pardington v. South Wales Co., 38 Eng. L. & Eq., 432, decided in November, 1856. In the latter case the question arose upon the reasonableness of a notice given by the company to a shipper of cattle under 17 & 18 Vict., ch. 31, § 7 (Railway Traffic act of 1854), which expressly held the company liable for the loss of, or injury done, to “ any horses, cattle, or other animals,” or to [192]*192any goods, etc., unless the conditions fixed by the notices, etc., should be held by the Court to’ be just and reasonable. Martin, Baron' (interrupting counsel), says: “ The common-law liability of common carriers does not apply to cattle at all. In former days they were not carried. They might, therefore, but for the statutes, make what conditions they pleased.” Pollock, C. Baron, also says: “ Why should they not say, if you insist upon our carrying your cattle, we will carry them; but it must be upon the terms that we shall not be responsible for any injury which may happen to them ? They hold themselves out as carriers of horses and cattle, sub modo.” The drovers went with the cattle, as in the present case; and Martin, Baron, in giving his judgment, says: “I doubt the liability of the company at all, even if there had been no stipulation on their part; for the fault, if any, was the fault of those who went by the train with the cattle.” All the Judges held the notice reasonable.
It will'be noticed that in England, by the statute cited, railroad| companies are common carriers of cattle, horses, etc., and bound to carry as such, if insisted upon by the shipper, except as they may limit their liability by notices or contracts which the Court' hold reasonable. And that the statute cited in Palmer v. Grand Junction Co., 4 M. & W., 758, was there held to have the effect. to make them common carriers of such property, if they accepted it Avithout conditions. (In that case, hoAvever, there was no evidence of their having held themselves out as doing such business only on special terms.) But this case has been frequently cited in this country, as if it had been made upon common-law reasons only, and applied to cases Avhere there were no such statute as that upon which it Avas clearly rested by the Court. Thus (without enumerating other instances), in Kimball v. Rutland Co., 26 Vt., 247, the [193]*193Court, after very correctly holding that the company, by publicly offering to take cattle at one price with the ■common-law liability, and at another and less rate when the owner assumed the risk, thereby held themselves out and became common carriers of cattle, proceed to cite this case of Palmer v. Grand Junction Co. as proving the proposition that “the fact that the company have undertaken such transportation for hire, and for such persons as choose to employ them, establishes their relation as common carriers.” The remark was correct enough, if applied to the facts of the case before them; but the language is much broader than is warranted by the case cited.
Upon sound principle and upon the English authorities above cited, I think it clear the transportation of cattle by railroad does not come within the reasons of the law applicable to common carriers, so far as relates to the care of the property and responsibility for its loss or injury.
Unless, therefore, there be something in the defendant’s charter, or the act of consolidation, or some other statute applicable to the case, — a question I shall hereafter consider, —the company were not bound to receive or transport cattle or hogs, as common carriers, but they might legally refuse to carry them in that 'or any other capacity.
And having the right to refuse altogether, they must have the right to refuse, except upon just such terms and conditions as they saw fit to require. And these conditions might, I think, be fixed by special contract, or by notice, or by their uniform course of doing that branch of business. They might, if they chose, undoubtedly assume the position of common carriers of such property; and if they held themselves out to the public or the parties employing them as acting in that capacity, and receiving and transporting such property in that character, as they do other property, they would be bound as such, and would [194]*194thereby naturally assume the custody, care, and management of the cattle from the tibie of their delivery at the yard or depot for transportation, the loading and unloading, and certainly the feeding and watering, when necessary, getting them up when they get down in the cars, and their protection from injuries of that and the like kind. But, to do this would obviously require them to provide yards or stables for them before put on board, with conveniences for watering and feeding, and the necessary supply of food there and at other stations, or at least at the terminus where théy are unloaded, — (and their safety might sometimes require this to be done at stations along the route), — or they must provide some mode, not yet invented, for feeding and watering on the train. They must employ a corps of men skilled in the care and management of stock, a business quite foreign in its character from that of operating a railroad; and they must make many other provisions to guard against injury and risk which are not required for other property generally transported by railroads.
Now, we must shut our eyes to what is notorious to all business men; or we must take judicial notice, as I think we are bound to do, that this is not the mode, and such are not the principles, upon which this great and rapidly increasing business of transporting live stock to an eastern market is generally, if at all, done upon the railroads of this Stale (if, in fact, in any other of the Western States).—Naylor v. Mangles, 1 Esp., 109; Spear v. Hartley, 3 Id., 81; 3 Pars, on Contr., 240; Sisson et al. v. C. & T. R. R., 14 Mich., 489.
I think we are also bound to know that if this business were done in this mode and upon these principles, and could be done in no other way, and the railroads were to be held responsible as insurers for all damages not caused [195]*195by tbe act of God or tbe public enemies (which is strictly the common law liability), or by the viciousness of some particular animal or animals in the mass, (Walker v. London R. R., cited, Angell on Carriers, § 214, note), (which would be a ludicrous distinction applied to a carload of cattle), or for all such as might be prevented by human agency (Clark v. Rochester R. R., 14 N. Y., 570), the railroad companies, to indemnify themselves against such risks and the extraordinary expenses of this mode of doing the business, must, of course, demand a much' higher freight; and if they can be compelled to carry, at all, in this way, they must provide themselves with all the conveniences I have mentioned, and keep on hand a special ‘ corps of experienced stock men;. and being compelled to keep them, and having gone to the expense of the necessary conveniences, it would then be for their interest to charge the higher freight in all cases, and refuse to carry upon any other terms. And, in this manner, those ' who would prefer to take the care and risk upon themselves for a lower freight would be deprived of the opportunity.
The law of common carriers is founded mainly upon considerations of public policy, and these considerations, therefore, should not be overlooked. On the other hand, if the drover with a sufficient force of his own men, experienced in the proper management of the cattle, goes upon the same train free of charge, in a drovers’ car, provided for that purpose, and has the entire charge, care and management of the cattle, and the responsibility for loss and injury incident to that mode of transportation, the company only furnishing the proper cars and motive power, and being responsible only for their sufficiency and the proper mode of making up and running the train, it is manifest there will be much less liability to [196]*196injury or loss, and that the companies can afford to carry the cattle at greatly reduced rates. This undoubtedly is substantially the mode in which this branch of business is generally carried on upon the railroads of this State, and probably other Western States, so far as relates to the transportation of cattle to an Eastern market; sometimes by special contract setting forth the terms, as in a bill of lading, receipt or ticket, and sometimes only by the uniform course of business as adopted by the company, and acted upon by their employers. But by reason of this diversity the particular terms and conditions upon which the business is actually done, in a particular case, cannot be judicially noticed without proof.
It has been frequently held, and seems to be well settled, that companies incorporated under charters which simply permit, but do not require, them to undertake the business of common carriers, become such, as to any particular kind of property (though such as comes within all the reasons of the law of carriers), or as to any particular portion of their route, only so far as they hold themselves out as such to the public, and are under no obligations to carry otherwise, or other kinds of property, than they publicly profess to carry.—Oxlade v. Northwest Co., 15 C. B., (N. S.), 680; Johnson v. Midland Railway Co., 4 Exch., 367; Farmers & Mechanics’ Bank v. Champlain Transportation Co., 23 Vt. 186, 206, 2 Redf. on Railways, 116. This was so held in the first case above cited, (decided in 1864), as to the carriage of coals; notwithstanding the railway (and canal) traffic act of 1854, already cited, which clearly made the railway companies common carriers as to all kinds of property, except as qualified by notices or contracts which the. Court should hold reasonable; all special contracts to be signed by the shipper, etc. And if the defendants in the present case were not bound, a [197]*197common carriers, to receive cattle and hogs for transportation, and they do not come within the reasons of the law of carriers as applied to other property, then, it must be very clear, under these authorities, that they were not common carriers of this species of property, unless, and only so far as, they professed to be and held themselves out as such. • If they have only held themselves out and professed to carry cattle on the terms, that the property should be under the care and management of the owner, or not under the care of the company, the latter merely furnishing proper cars and motive power, and being responsible only for the proper making up and running of the trains, this would not be holding themselves out as common carriers. They would, doubtless, be under the same obligations to furnish suitable cars and properly to make up and run the trains. And the duties and obligations of the company in all matters, not pertaining to the care, management and risk of the stoch, or to the mode of its reception and delivery, would be the same as those which attach to them in reference to other property generally. And all the.provisions of the charter against partiality in the order of receiving and shipping property would probably apply. These obligations might arise under their charter from their holding themselves out and professing to transport this kind of property on the same terms for all persons alike, who choose to employ them. But their professing to take property for all persons applying, upon the same terms, as to custody, care and risk, would not make them common carriers in respect to such custody, care and risk, unless those terms were the same as the law applicable to common carriers, would have fixed without such terms; for this would be to hold that it would be incompetent for the company to enter into express contracts of the same kind with all persons who should choose to employ [198]*198them, if such terms should vary the common-law liability; in other words, that while each contract would be good by itself, all would be rendered void by showing that all were alilce in these particulars.
We will next inquire whether there is anything in the charter of the Michigan Southern Railroad Company, or any other statute, making the company common carriers of this kind of property.
By the 19th section of the charter, they are required to keep their road “in repair and open for public use for the transportation there'on of persons and property, under such by-laws and regulations as said company may lawfully malee j” and they are required to have “a supply of motive power and cars both for persons and property, sufficient for the expeditious and convenient transaction of business, and transportation of all persons and property offering for transportation thereon, according to the usual course of business upon the line and route of said road; and said company shall at all times receive and discharge persons and property at such warehouses and places along the line of said railroad, as such persons and' consignors may direct and require,” etc.
At the time of the passage of this act, cattle had not become articles of transportation by common carriers by land in any form in this country; and, though they had just begun to be carried by railways in England, these did not usually take them as common carriers, but under modified liability by notice or contract, as the reports clearly show. ■ This charter evidently required the carriage of only such kinds of property as were then usually carried by railroads, , as common carriers, and such other kinds as might, from time to time, call for transportation, the risk and care of which should fall within the like principles; and only when offered for transportation “according to the [199]*199usual course of business upon tbe line and route of tbe road,” and “under such by-laws and regulations as the company might lawfully make.”
By the first section of the act consolidating this company with the Northern Indiana Railroad Company (Laws of 1855, p. 801), “all the franchises, powers and privileges” then enjoyed by the Michigan Southern Bailroad, and “all the restrictions, liabilities and obligations” imposed upon it by its charter, are to “appertain to said united corporation” — “in the same manner as if such consolidation had not taken place.”
This charter of 1846 had made no express provision against favoritism, or for forwarding property in the order in which it was received, or against preferences of through freight over way freight, nor had it expressly given an action for delays in the transportation of property. Section 5 of the act of consolidation provides for these three things, and this is its entire scope and purpose. And though it contains the, provision that the company “ shall at all times, carry freight and persons, from all its depots, way stations, and other places where it is accustomed to receive or deliver such freight or persons, with all practicable dispatch, without any favoritism or partiality whatever (and as near as may be), shall forward from each of such depots, way stations, or places in the order it is received thereat, when, desired by the owner thereof, all freight delivered to it for transportation;” the last clause (all freight, etc.) is qualified by the clause “when desired by the owner thereof;” meaning only that it shall not be the duty of the company to transport it in the order of its reception, unless the owner so desires; as he might wish (for instance) to bring it in, in several loads or parcels, to be sent off together, when he gets the whole ready. This provision clearly does not require the company to carry any kind of freight [200]*200which it was not already bound to carry. Such an idea is foreign to the manifest purpose of the section.
The only other statute relied upon is the act of 1867, (Sess. Laws, p. 165), the first section of which provides, “That no railroad company shall be permitted to change or limit its common-law liability, as a common carrier, by any contract or in any other manner, except by a written contract, none of which shall be printed, which shall be signed by the owner or shipper of the goods or property to be carried.”
It must be very plain that, if this company were not, and have never become, common carriers of cattle and live stock, there was no common-law liability as a common carrier of such property which could be changed or limited by contract or otherwise; and the act can have no application to the case. It can apply only to those kinds of property which the company were bound to carry, as common carriers, and such others as they had assumed dr should assume to carry in that capacity.
I proceed, then, to inquire whether there was any evidence in this case tending to show that the defendants held themselves out, or, professed to be common carriers of such property, and to assume its care and management, as such.
The burden of proving this rests upon the plaintiffs, who have alleged such a contract.' And the defendants, as already shown, not being bound as common, carriers, to carry cattle, and in the language of Martin, Baron, already cited, “the common-law liability of common carriers not applying to cattle at all” (unless assumed by a railroad) and such not being the mode in which cattle are generally carried by railroads in this State, (and if ever so carried, it would be an exception to the general rule) — the mere fact that the defendants were in the habit of transporting cattle' raises no presumption, and gave the plaintiffs no right to [201]*201infer, that the company were transporting them in the capacity of common carriers, with all the duties and responsibilities of that character, a presumption which would very properly attach to the carrying of other property generally.
The plaintiffs must, therefore, prove affirmatively that the defendants. actually held themselves out to the public as common carriers of this kind of property, or must show that they contracted to carry these particular cattle and hogs in that way. Under such circumstances I can see no principle upon which the defendants could be bound to show affirmatively any facts going to qualify their liability as common carriers, until it should be first affirmatively shown that they had become such with reference to, such property. And the plaintiffs, I think, were bound to enquire and inform themselves of the usages and course of business of the company, and of the terms upon which they transported such property, and to take notice of any usage they might have adopted in reference to it.
The plaintiffs, I think, wholly failed to make the required proof. In their opening they proved that the cattle, were put upon the cars and transported to Detroit, and that one of the plaintiffs and his brother went along on the same train with the cattle, having free passes given by the company (entitling them to go and return free)'; that it was customary for the owners or their agents to go with the cattle and to take care of them, and that they either went or got some one else to go with the cattle. And, though one of the plaintiffs testified that he did not know that the passes were given for this purpose, his brother, who went with him oh this occasion, in answer to a question whether, when the cattle and hogs were shipped at Hills-dale, a free pass was given him to ride on the train in care of the stock and hogs, says: “I had. I have been accus[202]*202tomed to go over this road with cattle; always had a pass in such cases, and did go with the cattle; there are cases in which hogs swelter and perish, especially in hot weather.” Another witness, the father of the other plaintiff, who attended to shipping the cattle at Coldwater, says: “ I told the freight agent I did not want any pass, as I was not coming with the cattle.” And there was no other evidence in the plaintiffs’ opening tending to show on what terms the cattle were shipped, or in whose care or management they were to be, except that the plaintiff, who went with them, testifies ■ that he left Detroit before the cattle were unloaded, and left them in the charge of his brother. And there was no undertaking to show that defendants had ever held - themselves out as common carriers ■of such property. On the other hand, it was directly •and affirmatively shown on the part of defendants, by •several station agents of the company, who had been ■such for years, and by the freight agents also, confirmed by the testimony of other drovers and stock men, who had done business on -the road, that the company had never made any provision for feeding or watering stock at any cf their depots or yards, or elsewhere, nor provided any food for that purpose; but that, by the uniform custom of the company, they did not, as -with goods and other property, receive or have the care of stock at the depots or yards awaiting shipment, nor receive it at the depots or yards at the end of the route on their road; that they had no charge or control of it in the yards; that they never •assumed to take the charge or management of it in the ■train or in course of transportation; that they never had -or employed men for any such purpose; but that the care ■and management of such property was uniformly left to the shipper and the men employed by him for that purpose; that such shippers and their men received free passes [203]*203from the company.to enable them to go on the same train to take care of the cattle, get them np when they got down, and attend to the loading, unloading, feeding and watering, wherever these were to be done; that such passes were always given when wanted. Plaintiffs admit that they had done this kind of business on this road for some time, admit the custom of giving passes, and that they do go with and tahe care of the. sioch on these passes j but one of them who went with those cattle says he never understood the passes were given for this purpose, while the other, who, on his direct examination, had stated substantially the same thing, says on cross-examination: "When I took a pass I supposed I could go with the cattle or not, as I pleased. I did not understand, if I did go, it was at my own risk. I went with the pass to take care of the stock, to see to getting it up when it was down; feed, water and sell them.” They deny that the company or its agents had told them that the stock was at their own risk. Some other witnesses on their part testify substantially the same as to the passes and what they supposed was their effect; others say nothing of the pass; while one of their witnesses, Atwater, says: “ In giving passes, agents would give them to us to go in charge of the cattle, on stock trains,” and Teachout and Johnson say: “When I take a pass, I understand I am to go on the train and take care of the cattle.” And all the witnesses of the plaintiffs, who were examined on the point, admitted the custom of passes to go with the stock. But while the plaintiffs and some of their witnesses denied that they supposed it made any difference in the responsibility of the company, whether they went with, the stock, no one of them says or pretends, nor does either of the plaintiffs, that they supposed or expected the company were to take any care of it; nor that the company ever had done or [204]*204assumed to do so, or made any provisions or employed any men for that purpose, nor that they ever complained that the company did not do so; but their whole testimony— though it is quite apparent that particular care was taken not to touch upon that point — tended to show that they did not expect the company to take the care or management of the stock on the train, nor suppose it to be the duty of-the company to do so. When, therefore, they say they did not suppose, by taking the pass, they released any liability of the company — this may be true. When they say they did not understand the stock was at their own risk— they simply give an erroneous legal opinion. If they did not expect, or look to the company to take care of the stock, and whatever care it received was to be their own, and that of their own men, then it is clear they did not suppose they had contracted for the care of the stock by the company. Some of their witnesses testified that they had shipped cattle short distances on the road without going with them, but their testimony showed that they did not rely upon the company to take charge of the stock, but upon some persons employed by themselves at some/ station, or at the terminus of the company’s road.
The plaintiffs, under objection, were allowed to show that they “did not know of any custom-by which shippers undertook, in consideration of a pass, that they would take care of the stock on the train;” but this was not the question. This was not claimed by the defendants. Their claim was, and their testimony had tended to show, that the company did not assume the care of the cattle, whether the owner went on the pass or not — that these passes were given that they might go and take care of it, if they pleased; but that, whether they did or not, the company did not assume the care nor the risk. But it is unnecessary to discuss this evidence further; since, if the burden [205]*205of proof rested upon the defense (as I think it did not) to show that the company did not have, and that it was not understood that they should have, the care and management of the stock, in the course of transportation, this was fully and clearly shown by them upon the trial; and there was no evidence on the part of the plaintiffs controverting this proposition. But, on the contrary, the tendency of the whole testimony, as well of the plaintiffs as of the defendants, was to show that the stock was in the plaintiffs’ own care and management, and that they did not trust to the company for, nor expect them to exercise, such care and management. They may have supposed they could hold the company liable as common carriers, notwithstanding. But this in no respect alters the case.—Brind v. Dale, 2 M. & W., 775. Such an opinion would be as unsound in law as the attempt would be in morals.
But the burden of proof, as I have endeavored to show, was not upon the defendants to qualify their liability as common carriers; but upon the plaintiffs to show that such liability existed; which they could only do by showing that they had held themselves out as common carriers of this kind of property, or that they had undertaken to carry this par-' ticular property in that way. This they entirely failed to do, or to introduce any evidence tending to support, in this particular, the contract alleged in their declaration, safely and securely to carry and deliver.
Though the evidence may show a contract, yet, as this differs in a very essential particular from that alleged, its identity with the latter is disproved; and this (unless in a prqper case an amendment is allowed upon the trial) is just as fatal to the plaintiffs’ case as the failure to prove any contract whatever.
But it is urged that the conclusion is in conflict with our decision in Great Western Railway Co. v. Hawkins, 18 Mich., 427.
[206]*206That was not like the present, an action of assumpsit upon contract, but an action on the case for a tort; and though, in such a case, a contract may be, and often is, so alleged, as the foundation of the duty, that a variance between such alleged contracts and the proof may become as fatal as in an action upon the contract itself; yet it is quite certain that no contract needed to have been stated in that case.—See “Ang. on Car.,” secs. 423 to 428, and cases there cited, especially Brotherton v. Wood, 3 Brod. & Bing., 54; Wyld v. Pickford, 8 M. & W., 490; Orange Bank v. Brown, 8 Wend., 158; and it seemed to us equally clear that no contract, 'in any proper sense of the term, was stated in the declaration. The delivery of the goods was not stated to be on reqhest, nor did it state that the defendant undertook or promised anything, and of course, therefore, it stated nothing as a consideration for any promise. The action was purely one of tort; and in such a case it was not supposed that any question of variance could arise, as to the identity of the contract proved, with that alleged, when, properly speaking, none was alleged.
It was assumed that the gist of the action being the "tort, it was enough that the proof conformed substantially to the declaration, showing a violation of*the duty alleged, (See Yall v. Arnold, 2 Penn., 292; Everard v. Hopkins, 2 Buls., 333; 1 Arch. N. P., 412,) and that no practical good would be accomplished by applying to such a case the strict rules of variance applicable to cases upon contracts.
But as the case in the 18 Mich, was a mere deduction from, or expression of, what was involved in (and therefore to be considered as decided by) the same case as reported in the 17 Mich., 57, when the precise question of variance, though involved, was not raised, nor (as I am informed) argued; and we could not therefore, when the case was before us the second time (after the new trial), well have [207]*207reversed the particular ease upon a point which was involved in it when first decided, and which if well taken should have prevented the new trial; and as there is some confusion and perhaps conflict in the authorities upon the question of variance, I should not be disposed to consider the decision as precluding further argument, should the point again arise.
The view I have thus far taken of the present case, if correct, shows that the Court erred in refusing the first and thirteenth requests' to charge (19th and 21st assignments of error), and the objections taken by first and second assignments of error upon the admission of evidence were well taken. It also renders the question raised by the seventeenth and twentieth assignments of error immaterial.
There are several other errors assigned relating to questions which may arise on a new trial, and which we proceed to notice:
A part of the cattle and hogs had been put upon the cars at Coldwater, part at Hillsdale, and part at Osseo; those at Coldwater on the evening of the 12th of December, the cattle and the hogs at Hillsdale and Osseo about the same time. But the cattle at Hillsdale seem to have been first put on, on the morning of the 13th, then taken off again and fed, and loaded again at about one o’clock P. M. of the 13th; and the cattle at Osseo were loaded about two o’clock P. M. of the 13th. The train, which took the whole, came along from the west, took those at Cold-water about two o’clock P. M. of the 13th, those at Hills-dale about dark, and those at Osseo about seven o’clock in the evening. They reached Detroit about five o’clock A. M. of the 14th, but were not unloaded until the afternoon of that day, and none (except those from Hillsdale) were fed or watered from the time they were put on the cars till they were unloaded, some of the stock thus having been much [208]*208longer on the cars than other portions of it, without food or water. A general question was allowed under objection from defendants, to be put to the witnesses and answered: “What, in their opinion, was the extra shrinkage of the stock at Osseo, Hillsdale and Coldwater, and at Detroit, above what it would have been had it gone on the regular train (which went on the morning of the 13th, but did not stop to take these cars), and had been unloaded omits arrival.” It is obvious that different portions of the stock, having been on the cars without food or water for different lengths of time, must have been quite, differently affected by shrinkage; and that the question should have been put and answered as to each separately. The admission of these questions was, therefore, erroneous. There were some other questions as to the admission of evidence upon which we express no opinion, as they will not be likely to arise in the same form upon a new trial.
We think the fourteenth request to charge was also erroneously refused. The testimony showed that the stock taken on at Chicago on the regular stock train, which the plaintiffs expected to take their stock as it came along, but which passed without taking it, was started at Chicago at 5 o’clock in the morning of the 12th, before any of the plaintiffs’ stock was put on the cars at Coldwater, Hillsdale or Osseo, and before the testimony showed any of it to be ready for shipment. The charge asked, was upon the hypothesis that the jury might find it was impossible, under the circumstances, to take the cars with plaintiffs’ cattle along on that train, and asked the Court to charge that, if the jury should find that the stock taken on at Chicago on the morning of the 12th, was, in due course of business, ready for transportation before plaintiffs’ stock was ready at Coldwater, Hillsdale and Osseo, it was not a violation of the defendants’ charter in reference to through and way [209]*209freight, to continue its transportation, although such act prevented the taking on of the plaintiffs’ stock on that train as it came along. The Court charged this, with the following qualification, viz: “Unless the consequence was contemplated or reasonably expected by the company.” I think the defendants had a right to this charge, without the qualification. The charter referred to (Consolidation act of 1865, § 5, already cited) required them to ship property “in the order it was received, at their depots, way stations, and places when desired by the owners thereof,” and if not desired, it could not have been, in the due course of business, ready for transportation.
The road of the defendants is a single line from Chicago east to Elkhart, which is some distance west of Ooldwater. From Elkhart there are two lines east, one to Toledo, over what is called the “air line,” and the other, the old line, via Adrian, from which last point they have one line to Toledo and one to Detroit.
While a large amount of stock was coming from Chicago to go, via the air line, from Elkhart to Toledo, and thence east over the Cleveland & Toledo Eailroad, and a considerable amount also by the old line east from Elkhart, a dispatch was received by the Superintendent, of the breaking down of a bridge on the Cleveland & Toledo Eailroad: and the owners of the stock on the cars bound for Toledo, changed the route for their stock and ordered it sent from Elkhart, via the old route, to Detroit. (The plaintiffs’ cattle were also first ordered shipped to Toledo, but they also for the same reason changed the route to Detroit.) In consequence of this change a large amount of stock cars were suddenly and unexpectedly thrown upon the old line for Detroit. This, with the state of the weather, was the reason the stock train, upon which the plaintiffs and the station agents had expected to send the plaintiffs’ stock, was not [210]*210taken. They therefore had to await the next train, the engineer not thinking it possible to take it on the first. But the company had an, extra engine at Elkhart, which could have been sent on, on the night of the 12th, after the large train had passed, though the Superintendent testified it could not have got the cattle through any sooner to Detroit.
In view of these facts the defendants requested the Court to charge, that it was not the duty of the defendants “to send an extra engine at night to haul the plaintiffs’ stock, but they might lawfully await the arrival of the succeeding train, by which it was taken, giving the plaintiffs opportunity to unload their stock, feed and water it, if they elected.”
The Court refused so to charge, but did charge generally “that the defendants were not obliged to take extra pains.”
The company were only bound to provide means to meet the ordinary exigencies of the business of their road, and were not obliged, owing to this sudden and unavoid-' able exigency, to put another train upon the routé. We think the defendants were entitled to the specific charge requested. It was correct and specially applicable to the facts of the case; and though the charge given may have embodied the same legal proposition, it was more general and less likely to be properly understood by the jury. And the refusal of the specific charge asked was calculated to produce the impression on the minds of the jury that it was deemed incorrect and inapplicable, or that it would not have been refused.
The judgment should be reversed with costs, and a new trial awarded.
The other Justices concurred.