EARL, C.

The rule of the common law makes a common carrier responsible for the safe carriage and delivery of property intrusted to his care, unless he be prevented by the act of God or of the public enemy. But this rule is not applied in its full extent to the carriage of live stock. (Angell on Car., § 214; Clark v. The Rochester and Syracuse R.R. Co., 14 N.Y., 570; Bissell v. New York Central R.R. Co., 25 id., 442; Smith v. New Haven and Northampton R.R. Co., 12 Allen, 531.) In the transportion of such stock, in the absence of negligence, the carrier is relieved from responsibility for such injuries as occur in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequences of its own vitality. Animals may injure or destroy themselves or each other; they may die from fright or from starvation because they refuse to eat, or they may die from heat or cold. In all such cases the carrier is relieved from responsibility if he can show that he has provided all suitable means of transportation, and exercised that degree of care which the nature of the property requires. Therefore in this case it was not sufficient to establish the common-law liability of the defendant to show that the hogs died from heat; but it was incumbent on the plaintiff to show further, that there was some negligence or omission of duty on the part of the defendant.

In this State it is well settled that a carrier may, by express contract, exempt himself from liability for damages resulting from any degree of negligence on the part of his servants, agents and employes. ( Lee v. Marsh, 42 Barb., 102; Keeny v. Buffalo and N.Y. Erie Co., 4 Keyes, 108; Keeny v. Grand Trunk R.R. Co., 59 Barb., 104; Bissell v. N.Y. Central R.R. Co., supra.) In some of the States it is held that a carrier cannot be exempted from responsibility for gross negligence. But so long as the freighter can insist that the carrier shall carry his property under the common-law responsibility, there can be no reason founded in justice, convenience or public policy why he may not voluntarily enter into a contract founded upon sufficient consideration exempting the carrier from all responsibility for any degree of negligence, whether it be gross or slight.

In this case, the plaintiffs assumed and agreed to take the risk of injuries to the hogs in consequence of heat. Effect should be given to this stipulation. The parties must be held to have meant something by it. In consideration that the plaintiffs would assume and take certain risks, which would otherwise devolve upon the defendant, it agreed to carry at a reduced rate. If it be held that this stipulation simply exempts the defendant from liability for injuries to the hogs from heat without any fault on its part, then it gets nothing; for in such case, without the stipulation, it would not be responsible. Force and effect can be given to this stipulation only by holding that it was intended to exempt the defendant from negligence, in consequence of which, the hogs died from heat.

The judge at the trial, however, entirely ignored this special contract and put the case to the jury upon the defendant's common-law responsibility, charging that it was liable if they found it guilty of negligence in the transportation of the hogs. And he refused to the defendant any benefit whatever from the special contract. In this I cannot doubt the learned judge erred.

The judgment should, therefore, be reversed and new trial granted, costs to abide event.

All concur.

Judgment reversed.