By the Court —
Johnson, J.
The only questions in this case arise upon exceptions to the charge, and to refusals to charge as requested.
The jury was charged that the defendant was not liable by reason of the contract between the parties for any damages arising from the delay in transporting the plaintiff’s cattle from Erie to Buffalo, nor for their detention at Dunkirk. But they were further charged that the defendant was liable for the damages sustained to the cattle in consequence of their not being unloaded during such detention, if the jury were satisfied, from the evidence, that the defendant could, by the exercise of reasonable care and diligence, have unloaded the cattle there in time to have prevented the injury complained of, after defendant’s agents were requested so to do by plaintiff’s agent, and that such request was made.
That the defendant was bound, after such request, to unload the cattle at Dunkirk, during such detention there, if it could be done by the exercise of reasonable care and diligence. The defendant’s counsel excepted to this portion of the charge.
This raises the question whether the defendant was charged with the duty or obligation of unloading the cattle, at the plaintiff’s request, during their necessary detention at Dunkirk from the snow storm. The jury by their verdict have found that the defendant’s agents were requested to unload the cattle ; that it might have been done by the exercise of reasonable care and diligence on their part, and that the injury and damage were occasioned by their not being unloaded, and their consequent continued confinement in the cars, during the period of their detention. It is contended by the defendant’s counsel here, as it was at the circuit, that [449]*449the defendant was under no obligation whatever to unload the cattle; that the rights and obligations of the respective parties rested in the special contract; and that, by the provisions of the contract, it was the business of the plaintiff to unload the cattle, if such unloading became necessary for their protection and safety. This must depend upon the construction of that provision of the contract which relates to unloading the animals. That provision is as follows: “ And it is further agreed that the said party of the second part is to load and unload said stock, at his own risk, the said railroad companies furnishing the necessary laborers to assist, under the direction and control of the said party of the second part, who will examine for himself all the means used in the loading and unloading, to see that they are of sufficient strength, and of the right kind, and in good repair and order.” The meaning and intention of this provision are quite apparent. The defendant was, in the first place, to furnish and provide the means for unloading the stock, consisting of the necessary platform and shute, a passage-way to enable the cattle to descend safely from the cars. Second, the defendant was to furnish the necessary laborers to assist and perform the labor necessary in unloading, under the direction and control of the plaintiff. In short, the defendant was to furnish the facilities and perform the labor of unloading, and the plaintiff was to direct and control the laborers. The defendant was to unload under the plaintiff’s superintendence and direction. The defendant was to do, and the plaintiff to direct and control as-to the manner of doing. The expression in the contract that the plaintiff “ is to load and unload said stock at his own risk,” is obviously used -in this sense and no other. This is rendered plain and certain by referring to the other portions of the provisions, and contemplating it in its entire scope. The unloading was at the plaintiff’s risk, so far as the sufficiency of the means was concerned, and the care and skill in handling the animals during the process of unloading. He was to see that the platforms and shutes, or bridges, were of the right kind, and of sufficient strength, and in good repair and order. [450]*450So far it was his job and at his risk, but no further. The defendant was to furnish the means and facilities for the unloading, and the hands to do the work of unloading. In this view, I am of the opinion that the charge to the jury was entirely correct. There was evidence tending to prove that the plaintiff’s agent requested the proper agents of the defendant to unload the cattle soon after the train was stopped at Dunkirk, and was promised that it should be attended to, and that the plaintiff’s agent waited at the cars through the residue of the day after such request, and through the entire night, for defendant’s agents to come, but none came. The defendant was, therefore, clearly in default. It is claimed for the defendant that the cars in which the plaintiff’s cattle were could not have been moved up to the shute provided by the defendant for unloading the cattle, in consequence of the depth of the snow and the severity of the storm. The testimony on this Subject was somewhat conflicting, but, assuming this to be so, the testimony shows without contradiction that a movable temporary platform could have been constructed with very little trouble, which would have answered every purpose for unloading with safety. If this was so, it came within the rule of reasonable care and diligence laid down in the charge. It is only necessary to' examine the case far enough to see whether the charge and the refusals to charge as requested were right. The judge very properly refused to charge that if the plaintiff could have unloaded the cattle himself, and omitted to do so, he could not recover any damages that he might have prevented by such unloading himself. The court and jury could see plainly enough how this was. True, the plaintiff’s witness and agent did say he could have unloaded the cattle himself. But he did not say he could have done it alone and unaided, and it was evident that he could not. It was, undoubtedly, possible for him to procure the materials for constructing platforms and bridges, and the necessary assistance to do tire work of constructing them and getting the cattle out. It was in this sense, undoubtedly, that the witness spoke and was understood; and in this [451]*451sense he might well say it was not his business, but the business of the defendant to do it. It was also, I suppose within the range of possibilities for him to have procured sufficient assistance to remove the trains in the way and the obstructions, and to have got the train containing his cattle up to the shute. But it was the defendant’s business to do it, and the defendant cannot be permitted to say that the plaintiff might have done what it undertook to do, and thus have prevented the injury and damage, especially when the thing to be done necessarily involves considerable expense and labor. If it had been merely the opening of a door to let the cattle step out, it might be different. It is no answer whatever, for the defendant to say, that the plaintiff might have performed what it undertook to perform, and thus have avoided all injury and damage. The jury were charged, expressly, that it was for the plaintiff to prove that the injury arose from the neglect of the defendant to exercise due care and diligence, after being requested to unload the cattle. This the jury have, of course, found by then verdict. The defendant’s counsel contends that there was no evidence before the jury to warrant any such finding, but that it appears, on the contrary, from the entire and undisputed evidence in the ease that the cattle could not have been unloaded any sooner than they were.
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By the Court —
Johnson, J.
The only questions in this case arise upon exceptions to the charge, and to refusals to charge as requested.
The jury was charged that the defendant was not liable by reason of the contract between the parties for any damages arising from the delay in transporting the plaintiff’s cattle from Erie to Buffalo, nor for their detention at Dunkirk. But they were further charged that the defendant was liable for the damages sustained to the cattle in consequence of their not being unloaded during such detention, if the jury were satisfied, from the evidence, that the defendant could, by the exercise of reasonable care and diligence, have unloaded the cattle there in time to have prevented the injury complained of, after defendant’s agents were requested so to do by plaintiff’s agent, and that such request was made.
That the defendant was bound, after such request, to unload the cattle at Dunkirk, during such detention there, if it could be done by the exercise of reasonable care and diligence. The defendant’s counsel excepted to this portion of the charge.
This raises the question whether the defendant was charged with the duty or obligation of unloading the cattle, at the plaintiff’s request, during their necessary detention at Dunkirk from the snow storm. The jury by their verdict have found that the defendant’s agents were requested to unload the cattle ; that it might have been done by the exercise of reasonable care and diligence on their part, and that the injury and damage were occasioned by their not being unloaded, and their consequent continued confinement in the cars, during the period of their detention. It is contended by the defendant’s counsel here, as it was at the circuit, that [449]*449the defendant was under no obligation whatever to unload the cattle; that the rights and obligations of the respective parties rested in the special contract; and that, by the provisions of the contract, it was the business of the plaintiff to unload the cattle, if such unloading became necessary for their protection and safety. This must depend upon the construction of that provision of the contract which relates to unloading the animals. That provision is as follows: “ And it is further agreed that the said party of the second part is to load and unload said stock, at his own risk, the said railroad companies furnishing the necessary laborers to assist, under the direction and control of the said party of the second part, who will examine for himself all the means used in the loading and unloading, to see that they are of sufficient strength, and of the right kind, and in good repair and order.” The meaning and intention of this provision are quite apparent. The defendant was, in the first place, to furnish and provide the means for unloading the stock, consisting of the necessary platform and shute, a passage-way to enable the cattle to descend safely from the cars. Second, the defendant was to furnish the necessary laborers to assist and perform the labor necessary in unloading, under the direction and control of the plaintiff. In short, the defendant was to furnish the facilities and perform the labor of unloading, and the plaintiff was to direct and control the laborers. The defendant was to unload under the plaintiff’s superintendence and direction. The defendant was to do, and the plaintiff to direct and control as-to the manner of doing. The expression in the contract that the plaintiff “ is to load and unload said stock at his own risk,” is obviously used -in this sense and no other. This is rendered plain and certain by referring to the other portions of the provisions, and contemplating it in its entire scope. The unloading was at the plaintiff’s risk, so far as the sufficiency of the means was concerned, and the care and skill in handling the animals during the process of unloading. He was to see that the platforms and shutes, or bridges, were of the right kind, and of sufficient strength, and in good repair and order. [450]*450So far it was his job and at his risk, but no further. The defendant was to furnish the means and facilities for the unloading, and the hands to do the work of unloading. In this view, I am of the opinion that the charge to the jury was entirely correct. There was evidence tending to prove that the plaintiff’s agent requested the proper agents of the defendant to unload the cattle soon after the train was stopped at Dunkirk, and was promised that it should be attended to, and that the plaintiff’s agent waited at the cars through the residue of the day after such request, and through the entire night, for defendant’s agents to come, but none came. The defendant was, therefore, clearly in default. It is claimed for the defendant that the cars in which the plaintiff’s cattle were could not have been moved up to the shute provided by the defendant for unloading the cattle, in consequence of the depth of the snow and the severity of the storm. The testimony on this Subject was somewhat conflicting, but, assuming this to be so, the testimony shows without contradiction that a movable temporary platform could have been constructed with very little trouble, which would have answered every purpose for unloading with safety. If this was so, it came within the rule of reasonable care and diligence laid down in the charge. It is only necessary to' examine the case far enough to see whether the charge and the refusals to charge as requested were right. The judge very properly refused to charge that if the plaintiff could have unloaded the cattle himself, and omitted to do so, he could not recover any damages that he might have prevented by such unloading himself. The court and jury could see plainly enough how this was. True, the plaintiff’s witness and agent did say he could have unloaded the cattle himself. But he did not say he could have done it alone and unaided, and it was evident that he could not. It was, undoubtedly, possible for him to procure the materials for constructing platforms and bridges, and the necessary assistance to do tire work of constructing them and getting the cattle out. It was in this sense, undoubtedly, that the witness spoke and was understood; and in this [451]*451sense he might well say it was not his business, but the business of the defendant to do it. It was also, I suppose within the range of possibilities for him to have procured sufficient assistance to remove the trains in the way and the obstructions, and to have got the train containing his cattle up to the shute. But it was the defendant’s business to do it, and the defendant cannot be permitted to say that the plaintiff might have done what it undertook to do, and thus have prevented the injury and damage, especially when the thing to be done necessarily involves considerable expense and labor. If it had been merely the opening of a door to let the cattle step out, it might be different. It is no answer whatever, for the defendant to say, that the plaintiff might have performed what it undertook to perform, and thus have avoided all injury and damage. The jury were charged, expressly, that it was for the plaintiff to prove that the injury arose from the neglect of the defendant to exercise due care and diligence, after being requested to unload the cattle. This the jury have, of course, found by then verdict. The defendant’s counsel contends that there was no evidence before the jury to warrant any such finding, but that it appears, on the contrary, from the entire and undisputed evidence in the ease that the cattle could not have been unloaded any sooner than they were. There was clearly evidence enough on that question to require the judge to submit the question to the jury as one of fact for them to determine; and we are not called upon to review the verdict upon the evidence to see where the preponderance lies. The judge was also requested to charge that the defendant was not liable on the ground that no such cause of action as negligence in not unloading, was set forth in the complaint. This request was properly refused. That was the only question which had been litigated as constituting the cause of action throughout the trial. It had been tried as a question arising under the pleadings, and it was too late, after all the evidence was closed, to object that no such question was before the court for trial. But the complaint is clearly broad enough to embrace that question. [452]*452It alleges that the defendant so carelessly and negligently conducted itself in and about the transportation of said cattle, that three of the number were, in consequence thereof, killed, destroyed and totally lost to the plaintiff; and that the residue of the said cattle were, by the careless and negligent conduct of the defendant in keeping and detaining them upon the cars in a crowded condition without food or water or care, and exposed to the elements, wounded, bruised, injured and depreciated in value. The specific act of negligence is not pointed out, nor was it necessary it should be. Enough was alleged to constitute a cause of action for negligence, and the defendant evidently knew what it was to meet. It is enough that the question was fairly litigated under the issue joined to justify the refusal to give such direction to the jury.
In the view I have taken, the duty and obligation of the defendant to unload or to furnish the means and assistance necessaiy for unloading, arose under the contract, and if it negledted to perform upon proper request, and damage ensued in consequence, a cause of action accrued to the plaintiff.
It is immaterial whether the defendant was to do the whole or only a material part, the result would be the same. The plaintiff’s agent was there ready to do his part, and it was not done by reason of the neglect of the defendant’s servants.
But the same duty, I should say, arose also outside of the contract, and independent of it, under, the circumstances of the case. A condition of things had arisen not contemplated by the contract. The train had been arrested at a point where the defendant had no means or facilities for unloading stock, and, as is claimed in its behalf .under such circumstances, that it could not, by the exercise of any reasonable care and diligence, obtain access for that train to the cattle yard and shute for unloading, sooner than it did. This may have been the view of the learned judge at the circuit, in ruling as it appears by the case he did rule and charge, that “ notwithstanding such contract,” the defendant would be liable if guilty of the negligence after notice. •
[453]*453In either view, I am of the opinion that the charge and the refusals were all correct, and that the judgment and order should be affirmed.
Judgment affirmed.