All of the exceptions of the defendant raise the same question, and that is whether there was sufficient evidence to be submitted to the jury.

*485 Tbe defendant does not deny tbe proposition tbat proof of loss or damage while in its possession or under its control makes out a prima facie case in favor of tbe plaintiff, but it contends tbat tbis principle bas no application because of tbe agreement to give tbe plaintiff free transportation, and tbat be would feed and care for tbe stock.

There is authority for tbis position, although it is held by some of tbe courts tbat such a stipulation in a bill of lading is void because it is a contract to relieve tbe carrier of its common-law duty (see R. R. v. Fagan, 13 A. S. R., 776; Heller v. R. R., 63 A. S. R., 554; Stiles v. R. R., 130 A. S. R., 461), but however tbis may be, it cannot prevail, and cannot rebut tbe presumption arising from injuries and damage sustained while in tbe possession of. tbe defendant, except where tbe damage is caused by tbe failure of tbe plaintiff to. perform bis agreement and in tbis case there is no evidence of such failure.

Again, tbe free transportation did not extend beyond' Washington City, and up to tbat point did not require tbe plaintiff to ride in tbe car with tbe stock, and although tbe defendant’s agent promised to do so, it did not carry tbe stock on tbe same train with tbe plaintiff from Richmond to Warsaw, and during tbis part of tbe shipment and for more than twenty-four hours tbe defendant bad complete control and custody of tbe car of stock in tbe absence of tbe plaintiff.

Also tbe nature of tbe injuries furnished circumstantial evidence tbat tbe defendant did not furnish a reasonably safe car, and tbat tbis was tbe cause of tbe injury, and if so, tbe defendant was negligent.

No error.