was received by the railway company at Memphis, and shipped by river under a through bill of lading for transportation to Clinton, in the state of Massachusetts, over the line of the railway company and its connections, subject to the condition contained in the bill of lading that the railway company and forwarding lines connected therewith should not be liable for loss or damage by fire or other casualty, while in transit, or while in depots or other places of transshipment, or at depots or landings at points of delivery, nor for loss or damage by fire, collision, or the dangers of navigation, while on the seas, rivers, lakes, or canals. The cotton was, as to its shippers and owners, delivered into the possession of the railway company at Memphis, which employed the River Transportation Company to take it from Memphis and deliver it to the railway company at North Cairo; but it was so in its possession subject to the assumption of the marine risk by the shippers and owners. It arrived at Cairo at midnight between the 10th and 11th days of December, and was not delivered at North Cairo because the agents of the railway company directed its detention at Cairo. We are satisfied that its enforced delay there for 17 days was caused, not by the ice in the river, but by the railway company for its own purposes. It is unnecessary to review the evidence. It is sufficient to say that the testimony establishes to our satisfaction that there was a glut of freight beyond the capacity of the railway company to handle with ordinary dispatch, that the railway company at Memphis contracted to carry this cotton during the period of and with knowledge of its inability to handle it with proper dispatch, and that the detention from the 11th to the 28th of December must be attributed as a fault to the railway company. This conclusion is supported by the fact that, during such detention, the railway company agreed with the River Transportation Company to a stipulated demurrage for the detention of the barges after 48 hours from their arrival, thus recognizing that the delay was for its convenience and for its own purposes. This delay, however, was not, of itself, a proximate cause of the destruction of the cotton by fire. The loss would have occurred if the barge had arrived at Cairo on the evening of the 28th of December, immediately prior to the fire, and had been moored at the place it occupied. The negligent delay was, standing alone, a remote, and not a proximate, cause, remotely contributing to the injury as an occasion or condition. Railway Co. v. Reeves, 10 Wall. 176; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 233, 11 Sup. Ct. 554; Hoadley v. Northern Transp. Co., 115 Mass. 304; Morrison v. Davis, 20 Pa. St. 171; Goodlander Mill Co. v. Standard Oil Co., 24 U. S. App. 7, 11 C. C. A. 253, 63 Fed. 400. So that if the negligent delay was the only fault attributable to the company, it may be doubted whether under the conditions of the bill of lading limiting liability, there could be a recovery, because such delay did not of itself produce the loss, there being no causal connection between the negligent act and the injury. For reasons of public policy a common carrier is not per mitted, even by express stipulation, to exempt itself from loss oc

casioned by its own negligence. Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 322, 6 Sup. Ct. 750, 1176; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 441, 9 Sup. Ct. 469; California Ins. Co. v. Union Compress Co., 133 U. S. 387, 415, 10 Sup. Ct. 365; Constable v. National Steamship Co., 154 U. S. 51, 62, 14 Sup. Ct. 1062.

The question, therefore, is presented whether the railway company, in connection with or independently of its negligent delay, was guilty of any act of negligence which may be deemed an active, efficient, and availing cause of the destruction of this cotton. For, although the immediate cause of the loss was doubtless fire from the sparks of a passing steamer, yet if the negligence of the railway company concurred or mingled with the immediate cause as an active and sufficiently proximate cause of the loss, the carrier is not absolved from responsibility, notwithstanding the stipulated exemption. And this is so, we take it, because the shipper stipulated the exemption from liability upon the part of the carrier with respect to dangers attending the property in the usual course of its carriage. They agreed to exempt the carrier from liability for loss or injury by fire or other casualty while the property was in transit, or while in depots or other places of transshipment, or at depots or landings at points of delivery, and from marine risks while on the seas, rivers, lakes, or canals. The exemption contemplates a continuous carriage according to the usual course of business, and the dangers incident to such carriage. It, doubtless, comprehended such usual delays as attended transportation in the ordinary dispatch of business. It may be doubted if the exemption included dangers incident to suspended transportation at the mere election of the carrier. It certainly did not contemplate that the carrier, during such suspended transportation, might negligently expose the cotton to dangers that ordinary forecast should have guarded against. In case of delay by the carrier, he is bound to protect the property in his charge from unreasonable hazards. He is bound to guard it from dangers which ought reasonably to be apprehended. If he fails therein, and especially if he unnecessarily exposes property to apprehended danger, he is liable, notwithstanding the exemption of the bill of lading, and although his act may not be the immediate cause, but the concurring cause, of the loss. There is no certain agreement in the cases in respect to the ground upon which the rule is based. Some assert the negligent act of exposure to be a proximate or, concurring cause of the loss. Others, disregarding any question of remote, concurring, and proximate cause, place the rule upon the ground that the carrier shall not be permitted to avail himself of exemption from liability when his own act has exposed the property unnecessarily to danger that should reasonably have been anticipated. The latter ground seems to us the more logical and comprehensive, avoiding all nice distinction with respect to remote, concurring, or proximate cause. It places liability upon the ground that the character of insurer attaches to the contract of carriage, and that the exemption from liability con

tracted for is inoperative in case the negligence by the carrier concurs with other causes to produce the loss; or, in other words, that the exemption contracted for was from loss occasioned by the dangers naturally incident to the carriage, and not from those which were brought about by the carrier's negligence, that the latter are not within the intendment of the exemption, and therefore that the carrier stands as insurer under his common-law liability, not discharged, with respect to losses occasioned by his own negligence, by any exemption in the contract of carriage. The rule, however, upon whatever ground it may be placed, is well settled. Williams v. Grant, 1 Conn. 487, 492; Tierney v. Railway Co., 76 N. Y. 306; Tanner v. Railroad Co., 108 N. Y. 623, 15 N. E. 379; Scott v. Hunter, 46 Pa. St. 195; Derry v. Flitner, 118 Mass. 133; McGrew v. Stone, 53 Pa. St. 436; Canal Co. v. Tiers, 24 N. J. Law, 697; McGraw v. Railroad Co., 18 W. Va. 361; Wolf v. American Exp. Co., 43 Mo. 421; Hewett v. Railway Co., 63 Iowa, 612, 19 N. W. 790; Fent v. Railroad Co., 59 Ill. 349; Railroad Co. v. Hoag, 90 Ill. 339.

We find no difficulty in reaching the conclusion that the railway company, during the period of negligent delay, wrongfully and negligently exposed this cotton to danger. The Ohio river, at Cairo, was the seat of an active commerce. The cotton should have been delivered to and received by the railway company at North Cairo, a place for the exclusive delivery of freight consigned to the railway company. By direction of the company the barge containing this cotton was detained at Cairo, a mile or two below the place of delivery, at the foot of the levee at Tenth street. This was a public landing, at the foot of a steep bank. At the top of the bank are laid the tracks of the Illinois Central Railroad, over which there is a constant passage of trains. There was at this time an unusual number of vessels at this levee, where at all times a greater number of vessels are moored than at any other point at Cairo. The main channel of the Ohio river is at this point closer to the shore than at any other point in the vicinity, so that passing steamers here come closer to the shipping than at other points, and especially so than at North Cairo, where the barge should properly have been moored. The congestion of shipping at this levee had the effect to place the barge further out in the river than ordinarily would have been the case, and so closer to passing steam

ers.

The prevailing winds at this season of the year are from the south. This being the condition of things, the barge was knowingly placed in the most exposed situation possible at Cairo. If it was designed to expose this property to destruction, no better place for that purpose could have been selected. On the one side it was exposed to sparks from passing trains upon the Illinois Central Railroad. Upon the other it was exposed to sparks from passing steamers, which here come closer to the shore than at any other point upon the river at that place. By reason of the congestion of the shipping there, this barge and its attendant steamer were moored far out in the river, and quite close to the channel, thus subjecting them to greater danger from sparks from the nu

merous passing steamers. This cotton, as is well known, is a highly inflammable material. The railway company refrain from handling it in the night time, to avoid exposing it to the possible danger to fire from torch or lantern. As one of the witnesses for the railway company expresses it, "It is liable to take fire almost like tinder."

The railway company was bound to deal with this property with a care proportionate to the risk. Being inflammable, the cargo should be zealously guarded against exposure to fire. Here, the barge was moored, not at the proper place, but in a place where it would be most exposed to danger, and to the very danger by which its destruction was accomplished, and which the most ordinary circumspection should have apprehended. And this was done, not out of necessity, arising in the transit of the cotton, but for the accommodation of the company during the period of its negligent delay in transit. We cannot but think, under the circumstances here disclosed, that this property was negligently exposed by the railway company, and that it cannot, therefore, avail itself of the exemptions of the bill of lading, because such dangers were not within the contemplation of the stipulated exemptions.

The decree will be affirmed.

WOODS, Circuit Judge, sat upon the hearing of this cause, but, for personal reasons occurring subsequently to the hearing, did not participate in the decision.

QUINCY HORSE RAILWAY & CARRYING CO. v. SCHULTE.

(Circuit Court of Appeals, Seventh Circuit. January 6, 1896.,

No. 252.

1. CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.

In an action for injuries caused by a movement of a street car while plaintiff was trying to enter thereon, where witnesses testified that at the time plaintiff endeavored to board the car, which was in motion, they got on without difficulty, it was error to refuse to charge that plaintiff could not recover if the injury was occasioned by the want of ordinary care and prudence on his part, and to refuse to instruct the jury what was meant by ordinary care.

2. DAMAGES-INSTRUCTIONS.

Where the basis for the assessment of the damages is not explained in the body of the charge, it is error to instruct: "If you find for the plaintiff in this case, the verdict will be: 'We, the jury, find the defendant guilty, and assess the damages at -whatever you think proper,

not exceeding the amount mentioned in the declaration."

In Error to the Circuit Court of the United States for the Southern District of Illinois.

This was an action by William Schulte, by William Schulte, his next friend, against the Quincy Horse Railway & Carrying Company. A judgment was rendered for plaintiff, and defendant brings error. Reversed.

J. F. Carrott, for plaintiff in error.

John C. Snigg and J. Hugo Grimm, for defendant in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS, Circuit Judge. The defendant in error, a citizen of Missouri, sued the plaintiff in error, a corporation organized under the laws of Illinois, and operating a street railway in the city of Quincy, in an action of trespass upon the case, for personal injuries alleged to have been caused by a negligent and sudden movement of the car, upon the footboard of which the plaintiff was stepping for the purpose of entering the car, whereby he was thrown to the ground, and his leg run over and crushed. Numerous errors are assigned upon the giving and refusing of instructions to the jury. The charge given is subject in some particulars to verbal criticism, but not so serious, perhaps, as to constitute essential error.

Except in the use of the words "reasonably and safely," "reasonably careful," and the like phrases, the court gave no definition of negli gence or rule by which the question of contributory negligence should be determined. The appellant asked a number of special instructions on the subject, among them the following:

"(1) The law will not allow any one to recover for an injury occasioned by the negligence of another, where such injury was occasioned by the want of ordinary care and prudence on the part of the person injured; and by the term 'ordinary care and prudence' is meant that degree of care and prudence which a person of ordinary care and prudence would exercise under the facts and circumstances existing at the time of such injury.' If, therefore, the jury believe, from the whole evidence in the case, that the injury testified about by the said William Schulte in this case was occasioned by want of ordinary care and prudence on the part of said Schulte, and that, but for such want of care and prudence on his part, the accident would not have happened, then the verdict of the jury should be for the defendant.

"(2) The court instructs the jury that 'ordinary care,' as the phrase is used in these instructions, implies the use of such watchfulness and precaution as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience. If the danger is remote or slight, the care required to avoid it may be slight; if the danger is near and extraordinary, then extraordinary vigilance should be used to avoid it, because such would be the course of a prudent person."

There being nothing equivalent in the court's charge, these requests should have been granted. The necessity for such further instruction was the greater because the court had called to the attention of the jury the testimony of two witnesses to the effect that at the same time the plaintiff endeavored to board the car, which was in motion, they got on without difficulty. That was possibly a circumstance to be considered in determining whether the plaintiff was justified in making his attempt, but, without further explanation, there was danger that from that fact alone the jury would find him free from fault, without understanding the test of his conduct to be in what a man acting with ordinary or average prudence would have attempted under like circumstances and conditions, and not in what two men did, who may have been stronger and more agile than the plaintiff, or who without such superiority may have successfully accomplished a dangerous undertaking.