Grand Trunk R. R. Co., 56 Me. 60; 96 Am. Dec. 435; Fairfax v. New York Cent. etc. R. R. Co., 73 N. Y. 167; 29 Am. Rep. 119; Toledo etc. R. R. Co. v. Tapp, 6 Ind. App. 304.

It was a question of fact in this case whether or not appellee was guilty of a violation of its implied undertaking or contract to send the baggage on the same train with appellant; in other words, whether or not appellee was guilty of negligence in not taking proper steps to have the baggage carried by the train on which appellant traveled, and to have it so carried throughout the whole length of the journey; or whether the failure to have the baggage transferred to the baggage-car of the limited express train at Pittsburg was in any way the 554 fault of the appellant. We think that the court erred in not submitting this question of fact to the jury, and in directing a verdict for the defendant without permitting the jury to pass upon such ques

tion.

If appellant's trunk had been transferred at Pittsburg to the baggage-car attached to the limited express train from Chicago, as was done with the sleeping-car in which appellant was traveling, the trunk would have passed through the place of danger before the flood occurred, and would not have been destroyed or lost by reason of the flood. If the appellee was guilty of negligence in failing to put the trunk upon the right train-upon the train where its implied contract with appellant required it to put

the trunk-it was

in direct contact with the force known as an act of God. "If guilty of negligence which brought the trunk the superior force would have produced the same damage, whethdeemed the cause of the injury": Shearman and Redfield on Neger the defendant had been negligent or not, his negligence is not ligence, 4th ed., sec. 39. But here it cannot be said, that the flood would have caused the loss if the trunk had been transferred to the limited express train at Pittsburg.

It is said, however, that the contract of transportation was ties of the parties under it are governed by the law of the place made at Cincinnati, Ohio; that such a contract and the liabiliwhere the contract was made; that the contract to transport appellant's trunk, having been made in Ohio, must be governed by the law of Ohio; that by the law of that state, loss of goods in the possession of a common carrier occurring by reason of an act of God, even though such loss would not have been met with but

carrier of liability for the loss; and that the case of Daniels v. Ballentine, 23 Ohio St. 532, 13 Am. Rep. 264, which was in

on the part of the carrier, relieves the

AM. ST. REP., VOL. LII.-22

troduced in evidence, shows what the law of Ohio is upon this subject. If the doctrine of lex loci contractus is applicable to this case, and if the case referred to is the 555 law of Ohio, we do not think that the contention set up can be maintained, because the doctrine of Daniels v. Ballentine, 23 Ohio St. 532, 13 Am. Rep. 264, is not applicable here.

In that case, the action was brought to recover the value of a barge, which defendants contracted to tow by means of a steam tug from Bay City, Michigan, to Buffalo, New York, and which was lost in a storm on Lake Erie. It appears that, after the voyage was begun, the defendants delayed on the route three days, and then began the voyage again, and, while on such delayed voyage, the barge and tug were overtaken by the storm and lost. The court expressly states that the defendants in that case were not common carriers, and that, although they had such control of the barge as was necessary to enable them to move it, yet the plaintiffs had possession of it, "and for most purposes it remained in their custody and care." The case, however, presents an instance of mere delay without other negligence. If, in the case at bar, the trunk had been placed upon the right train, and that train had been delayed on the way, and, by reason of such delay, had come in contact with the flood, then perhaps there would be a resemblance between this case and the Ohio case. But here the delay did not result simply from a halting, or stoppage, in the movement of a train which was carrying the trunk in pursuance of the contract of carriage, but it resulted from negligence in failing to keep an implied contract to carry the trunk upon a particular train, and in violating that contract by carrying the trunk upon a different train from the one agreed upon, that is, upon the assumption that the facts would show no excuse for not keeping the contract. It is like a deviation from the usual course by the master of a vessel, during which a cargo is injured by a storm at sea; in such case, the deviation is regarded as a sufficiently proximate cause of the loss to entitle the freighter to recover, as it brings the vessel in contact with the storm, in itself the act of God: Davis v. Garrett, 6 Bing. 556.716; 19 Eng. Com. L. 212. Here was a deviation from the contract by the use of one agency of transportation not agreed upon, instead of the use of another agency of transportation which was agreed upon, thereby bringing the property in transit in contact with the flood, in itself the act of God. In Davis v. Garrett, 6 Bing. 718, it was urged that there was no natural or necessary connection between the wrong of the master in taking the barge out

of its proper course and the loss itself, "for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course," but the court held the objection untenable, and Tindal, C. J., there said: "The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable."

The language last quoted is precisely applicable to the case at bar, which is not a case of delay in the transportation of goods being carried by the right conveyance, as in Daniels v. Ballentine, 23 Ohio St. 532, 13 Am. Rep. 264, but a case of neglect in forwarding a trunk by the wrong conveyance, to wit, by the day express, instead of the limited express. Of course, in all that is here said, it is not intended to express any opinion as to whether the failure to ship the trunk by the right train at Pittsburg was or was not the fault of the appellee in view of the conflict in the testimony as to the circumstances attending the checking and shipment of the trunk. But, if there was nothing in such circumstances which excuses appellee from its implied obligation to ship the trunk from Pittsburg upon the train carrying appellant eastward from that point, then we think that the property was unnecessarily exposed to the destructive power of the flood in question through the previous negligence or misconduct of appellee, and, consequently, that appellee is not excused: Williams v. Grant, 1 Conn. 487; 7 Am. Dec. 235. Hence, the case should have been allowed to go to 557 the jury under the instructions asked by appellant upon this question.

For the reason thus indicated, the judgments of the appellate court and of the superior court of Cook county are reversed, and the cause is remanded to said superior court for further proceedings in accordance with the views herein expressed.

AN ACT OF GOD means something superhuman, or something in opposition to the act of man. Thus, a loss arising from a great fire is not a loss arising from the act of God: Chicago etc. Ry. Co. v. Sawyer, 69 Ill. 285; 18 Am. Rep. 613; but a loss arising from an unprecedented flood is a loss arising from an act of God, and excuses the carrier from liability for a loss, provided he has been guilty of no negligence or departure from duty contributing to the occurrence of such loss: Norris v. Savannah etc. Ry. Co., 23 Fla. 182; 11 Am. St. Rep. 355, and monographic note thereto on a carrier's liability for loss or deterioration of goods by delay: Smith v. Western Ry., 91 Ala. 455; 24 Am. St. Rep. 929.

CARRIERS-NEGLIGENCE CONCURRING WITH ACT OF GOD.-An act of God which excuses a carrier must not only be the proximate cause of the loss, but the sole cause. If the loss is caused by the act of God, and the negligence of the carrier mingles with it

as an active and co-operative cause, he is still responsible: Wolf v. American Exp. Co., 43 Mo. 421; 97 Am. Dec. 406. This rule is laid down in the monographic note to Norris v. Savannah etc. Ry. Co., 11 Am. St. Rep. 363, 364, on carriers' liability for loss or deterioration of goods by delay, and to Wolf v. American Exp. Co., 97 Am. Dec. 409, on a carrier's liability for loss occasioned partly by act of God and partly by other means. Other views, however, are given in these notes. A common carrier is liable for the safety of a passenger's baggage in his keeping as carrier, except a loss from an act of God or a public enemy: Roth v. Buffalo etc. R. R. Co., 34 N. Y. 548; 90 Am. Dec. 736. The same rules of care and diligence on the part of a railway company apply whether baggage is forwarded on the same, preceding, or subsequent train, where the passenger has paid his fare, and his baggage is sent pursuant to the contract of carriage: Warner v. Burlington etc. R. R., 22 Iowa, 166; 92 Am. Dec. 389. A common carrier is responsible for injury to goods by an act of God, If he departs from his line of duty, and while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have produced the injury: Michaels v. New York etc. R. R. Co., 30 N. Y. 564; 86 Am. Dec. 415.

NEGLIGENCE,QUESTION OF FACT.-Negligence is ordinarily a question of fact for the Jury to determine from all the circumstances of the case: Durbin v. Oregon etc. Co., 17 Or. 5; 11 Am. St. Rep. 778.

CASES

IN THE

APPELLATE COURT

OF

INDIANA

MERCHANTS' AND MECHANICS' SAVING BANk v. Fraze.

[9 INDIANA APPEALS, 161.]

NEGOTIABLE INSTRUMENTS-NON-NEGOTIABLE NOTE EQUITIES-DEFENSES.-A promissory note, though payable to order at a bank in this state, which contains a clause waiving all defenses based upon any extensions of time for its payment that may be given by ute, as an inland bill of exchange. Such a clause destroys the negotiability of the instrument, and an indorser for value, before maturity, takes it subject to, and charged with, all the equities and de

fenses against it.

SALES-SPECIFIC PURPOSE OR USE.-If an article puruse, there is an implied warranty that the article is reasonably fit or chased is to be manufactured or produced for a specific purpose or suitable for the purpose or use for which it was ordered.

an implied warranty in the sale of a stallion for breeding purposes, SALES-HORSES-SPECIFIC PURPOSE OR USE.-There is in them, and therefore knows their qualities, that the animal shall where such sale is made by one who raises horses of that kind, deals be reasonably fit for breeding purposes.

ject to equities.

NEGOTIABLE INSTRUMENTS-DEFENSES-BREACH OF WARRANTY.-In an action on a non-negotiable promissory note, an answer setting up a breach of the implied warranty that the horse given for the purchase price of a stallion sold for breeding purposes, is reasonably fit for such purposes is sufficient, where the note is subing purposes turns out not to be reasonably fit for such purposes, and SALE-RESCISSION-TENDER.-If a stallion sold for breedtimely notice of this fact is given, but the seller and buyer agree that trial, the death of the horse during the season in which he is to the latter shall keep the horse another season to give him a better the horse before that season has expired. have a final trial renders it unnecessary to make another tender of not proper practice to assign as error that which is cause for a new trial, such as a refusal to give correct Instructions submitted. APPEAL-ASSIGNMENT OF ERROR-NEW TRIAL.-It is Ing a jury that they may adopt that construction of a contract which INSTRUCTIONS-CONTRACTS.-There is no error in instruct-

the parties themselves have placed upon it.