Page:Federal Reporter, 1st Series, Volume 4.djvu/726

 T12 FEDERAL REPORTER. �tion of tlais court. In the former case the effect of a general notice by the carrier seeking to extingnish his peculiar liabil- ity was also considered; and, although the remarks of the judge on the point were not necessary to the decision of the case, they furnish a correct exposition of the law on this much- controverted subject. In speaking of the right of the carrier to restrict his obligation by a special agreement, the judge said : It by no means foUows that this can be done by an act of his own. The carrier is in the exercise of a sort of public office, from which he should not be permitted to exoner- ate himself without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the publie limiting his obligation, which may or may not be assented to. He is bound to receive and carry ail the goods offered for transportation, subject to ail responsibilities inci- dent to his employment, and is liable to an action is case of refusai. If any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an expi-ess stipulation by paroi or in writing should be permitted to discharge him from duties which the law has annexed to his employment.' " And there is more in the same opinion to the same efïect, -which it is not necessary for meto read. • I say to you, gentlemen, so far as anything contained in the rules and regulations for the transportation of live stock, printed at the head of this contract, is concerned, it is not a part of the contract with this plaintiff. �Upon the question of damages in this case, in the event you shall find for the plaintifï, (of course, if you find that the delay did not cause the injury, that is the end of the case, and you find for the defendant. If you find that the plaintiff himself ■was negligent, that his negligence contributed materially to the lûss -^-hich he has sustained, that is the end of the case;) bïit, if upon these questions you find for plaintiff, you will then consider the question of damages. In this part of the case you are the judges, but you must consider it carefully. ����