Page:Federal Reporter, 1st Series, Volume 4.djvu/721

 OBMSBY V. U. P. E. 00. 707 �$. Samb— Bame.— 5uch contraat is valid, however, in so far as It requires that the shipper shall go with the stock and take charge of it, shall take and prepare the car for the use of the stock, and shall see to tha loading and unlbading of the same. �9. Same— Samk — Notice. — A railroad company cannot exempt itself from any of its obligations as a conunon carrier by mere notice, or by printing which is appended to or indorsed upon the contract which is executed, but muet do it, in so far as it is lawful to do it at ail, by » stipulation in the body of the instrument, to which the shipper assents by his signature. BaUroad Co. v. Manufg Oo. 16 "Wall. 328, 329. �C. W. Wright, for plaintiff. �J. P. Usher and H. M. e W. Teller, for defendant. �M.cGiiiiii,Y,C.3.,(chargingjury.} Tbis is a suit in which the plaintiflF claims to recover damages from the defendant, the Union Pacific Eailway Company, on the ground of negligence in the transportation of a car load of horses. �The plaintiff, in order to recover, must establish two prop- ositions of fact, and of those propositions you are the judges: First, that the railroad company -was negligent in the matter of delay in transporting plaintiff 's horses; second, that the resuit of that negligence was the damage and injury com- plained of. I will speak to you first only with regard to the plaintiff's case. Presently I will call your attention to the several defences that have been set up by the defendant. You will then in the first place oonsider whether the plaintiff haa made out, prima facie, a case upon which heis entitled to re- cover if the defence is net established — whether the railroad company was guilty of negligence in the matter of delay; beeause there is no allegation that there was any negligence except in the delay of 24 hours at the station of BrookviUe, between this and Kansas City. It is the duty of a railroad company, engaged as a common carrier, when they receive freight to be transported, to carry it without unnecessary delay. A delay of 24 hours at a station on the way is an unnecessary delay, unless it is explained and excused by something which the law recognizes as sufficient. The excuse that the company needed its roUing stock for the purpose of carrying passengers is not a sufficient excuse. The duty ol ����