Kansas City, Memphis & Birmingham R. R. v. Holland

delivered the opinion of the court.

The fair construction of the special contract, relied upon by appellant to defeat a recovery in this suit, will require us to hold that the acceptance of the box-car, by the appellee, for the transportation of his stock, in no event went further than an acceptance of such box-car when the open door of the same had been properly slatted, as had been stipulated for before the special contract had been signed. In the face of the undisputed evidence that the door of the box-car furnished was not open and slatted, the suitableness of the conveyance, in the condition in which it was used in the transportation of the appellee’s stock, was clearly a proper question to be submitted to the jury.

It is clear, likewise, that the death of the jack resulted from a cause other than those against whose occurrence the appellee assumed the risk in the special contract. The special contract contains this agreement, viz: “And the said party of the second part having examined the same, hereby accepts for such transportation the cars provided by said company to be used for the transportation of said stock, and hereby assumes all risk of injury which the animals, or either of them, may receive in consequence of any of them being wild, unruly or weak, or by maiming each other or themselves, or in consequence of heat or suffocation, or other ill-effects of being crowded in the cars, etc. etc.”

*355There was much evidence which showed, or tended to show, that the animal died from suffocation by reason of the insufficiency of ventilation of the car. There is no particle of the evidence which even points at death from suffocation in consequence of the car being crowded Avith animals. The special contract sought to relieve the company from liability for injury to the stock from crowding the car with stock; but injury in consequence of insufficiency in ventilation in the car furnished and used was not one of the risks assumed by the shipper when he signed the special contract.

Entertaining these opinions, there was no error of the court below, either in submitting evidence of the unsuitableness of the cai’, or in the giving and refusing of the instructions to which exception was taken.

Affirmed.