The point made that the court erred in allowing the plaintiff to show the special qualities of the mare which gave her the value alleged, because no allegation of special value is contained in the declaration, we do not consider tenable.
The value being alleged by way of damages for the loss of her, it was not necessary to specially aver all the qualities that constituted such value.
It is next objected that if the mare was possessed of such qualities that gave her greater value than ordinary animals, the plaintiff should have notified the defendant of the fact at time of shipment, and in not doing so a fraud was committed upon the carrier.
There is nothing in this record tending to show that Eeely, the agent of appellee used any means to deceive the appellant as to the value of the mare and no inquiries were made by its agents regarding her qualities or value.
The animal was seen by the agent at the time of shipment, and if the carrier had any special rules or custom binding upon its servants by which their care of the animal was proportioned to its value, we think they should have inquired *61of the shipper whether she possessed any special value before assuming the duties of a common carrier.
If the record showed that deception had been practiced upon the carrier to induce a belief that her value was less than now claimed, the question presented would be different and the cases cited might be considered as sustaining the position contended for.
Besides if the carrier is liable in this action it is upon the ground that because of its negligence the mare became so overheated, or smothered, as counsel puts it, as to cause the injury complained of, and there is nothing appearing to show that she would not have been likewise injured if she had not been of such value, neither is it probable that the result would have been any different if. the facts had been stated to the agent concerning her value as a breeder of fine stock.
The point made would also seem to imply that a less degree of care is required to prevent the suffocation of an animal worth say $100, than if the same animal was worth three times as much, a position which we can not sustain.
We think the same degree of care is required by the law of a common carrier to prevent destruction of animal life in the one case as in the other.
Appellant sought to prove that there was a custom among railroad companies that the carrier should not be liable for injury to, or loss or destruction of live stock beyond the sum of $100, but the court excluded such offered proof. In this there was no error.
A custom which would excuse them from acts of negligence would be against the policy of the law and can not therefore be held valid, and it has been held that a common carrier can not even contract against its own negligence or that of its servants: Adams Ex. Co. v. Stettaners, 61 Ill. 184; Ill. Cen. R. R. v. Adams, 42 Ill. 474; Western Trans. Co. v. Newhall, 24 Ill. 466; Railroad Co. v. Pratt, 22 Wall. 123.
It is also urged that the appellant had adopted certain rules and regulations, and that the appellee had notice thereof, that the company would not carry live stock unless the shipper signed a special contract limiting the liability of the appellant *62for loss or injury thereto to the sum of $100. ¡Notice of the adoption of such rule does not create a contract between the parties by which such rules become binding upon the shipper. ¡Notwithstanding such notice he may insist that his goods shall be received and transported subject to all the incidents of the carrier’s employment: Western Trans. Co. v. Newhall, supra, and the assent of the shipper to the limitation of liability must appear before he can be held bound: Anchor Line v. Dater, 68 Ill. 369. In this case no contract was signed and there is no evidence that the appellee ever assented to any limitation of the carrier’s liability.
The first instruction given for the plaintiff being the only one asked upon the merits of the case, we consider improper, in view of the character of the injury to the mare and the evidence introduced, touching the cause of the injury and which the jury had a right to consider upon that question. It will be noticed that the only injury complained of is that the animal was overheated and that this was caused by the act of the defendant in failing to furnish a suitable car, or for want of a proper degree of care upon the part of the defendant in promptly forwarding, and to prevent the car from becoming closed during the transportation to Peoria.
There was evidence tending to show that the car was a suitable one and properly arranged for allowing sufficient air to the animal, and that the car was kept in that condition, and that if the mare was overheated it was in consequence of an inherent infirmity incapacitating her to withstand the extreme heat of the weather. As the ease must be again tried we shall express no opinion upon the weight of the evidence upon this material point in (lie case.
The obligation to deliver the mare in good condition if so received by the carrier is made by the first branch of the instruction as absolute as the duty to transport safely, and to make delivery to the consignee, and there being no question made but the mare safely arrived so far as the act of transportation was concerned, and was promptly delivered to the appellee upon the arrival of the train, the jury would be very likely to understand that the neglect of duty mentioned in *63the second branch of the instruction referred to the failure of the carrier to deliver in as good condition as received, and that such failure was conclusive evidence of negligence in the carrier by which such condi tion was caused, especially as the instruction characterizes it as “ such negligence.”
At common law a common carrier was held as insuring the safe arrival at its destination of the commodity entrusted to it for transportation against all acts except what was denominated the acts of God and of the public enemy, but this strict accountability did not include the condition of the article at the time of its arrival as compared with its condition when received.
. Their liability as to responding in damages for an impaired condition of the property upon its arrival at its destination, depended upon the nature of the commodity carried, and the cause of its deterioration in value, or of the injury it had received during its transit.
If the loss or injury was the direct result of natural decay or any inherent infirmity in the article itself, the carrier was excused. Thus it has been said that the carrier was not responsible for the loss of molasses escaping through vent holes necessary to prevent the bursting of the casks, for the evaporation of liquids, or the natural decay of fruit or vegetables: Angelí on Carriers, Sec. 211, and cases cited. Resting upon the same principle, is the exemption from liability where the injury to live animals is occasioned by their natural propensities toward themselves or toward each other during transit.
The escape of steam, the rattle and jar of the car, or the noise of the train even when properly operated, may frighten some of them and they be injured in value thereby, the vicious and unruly may injure the others, some may refuse to eat or drink, and in a variety of ways the very means adopted for their transportation may, through the natural disposition of the animals, or their inherent infirmity, work greater or less injury to them, when no negligent act of the carrier whatever has contributed thereto.
So, too, in the transportation of live stock, the carrier in the absence of negligence is not responsible for such injuries as *64occur in consequence of the vitality of the freight. It would seem that non-liability for injury or damage occurring to live stock under the circumstances supposed, is not to he considered as an exception to the common law rule of liability en7 grafted upon it by the courts, since the introduction of railroads into the field of common carriers, but rather as the application of a well-known principle of the common law, as old as the rule itself to a species of freight which no common carrier, until recent times, transported by land.
The character of the property carried and the liability of its inherent qualities to work loss or injury to itself, unaffected by any act of the carrier, was ahvays considered in determining whether the carrier was responsible for an impaired condition of the freight, and this principle should, in furtherance of justice, be applied to every new article, introduced by discovery or invention, into the commerce of the world, or to any new species of freight becoming the subject of transportation by a common carrier, and which, in its nature, possesses qualities which under the operation of natural laws may without any fault of the carrier cause a diminution in quantity or value or its entire loss or destruction.
But whether the exemption in case of live stock is to be treated as an exception to the rule on account of the peculiar character of the freight, or as an extension of the rule to the transportation of animals as a new business, it is perhaps unnecessary to determine, as in either case the liability of the carrier remains the same.
Loss and injury thus occasioned are matters of defense for the carrier, and he will not be held liable for a failure to deliver such stock in good condition if he can show that he has furnished suitable means of carriage, and during the time the stock has been in his possession, he has exercised that degree of care required bv the nature of the property. Smith v. Railroad Co. 12 Allen, 531. How in this case if the mare was overheated, in consequence of her inability to bear the hot weather, and the appellant did not by any act of neg- ' ligence contribute to such result, it can not be held liable.
The instruction is also erroneous in charging the jury that *65if the animal was injured by the defendant the plaintiff was entitled to recover her value, thereby assuming that the injury was the cause of her death, when there is considerable evidence in the case tending to show, and which should have been submitted to the jury, that the cause of her death was the improper treatment she received after she was delivered to the appellee. If the appellee was negligent in his treatment of her, and the damage was thereby increased, the carrier should not be held responsible for such damages thus resulting.
The instructions given for the appellant are as full and favorable as it had any right to demand or expect, and if we could see that the verdict was not infected by the erroneous instruction of the appellee, we should not be inclined to reverse, but as the evidence is very conflicting upon the material points in the case and quite evenly balanced, the instructions may have had the effect to mislead the jury and incline them to find the verdict they returned.
Such being the state of the evidence the instructions should have been as clear, accurate and harmonious as possible. Quinn v. Donovan, 85 Ill. 194; Am. Ins. Co. v. Crawford, 89 Ill. 62; Cushman v. Cogswell, 86 Ill. 62; Wabash R’y Co. v. Henks, 91 Ill. 407; Swan v. The People, 98 Ill. 610.
Where the evidence is so largely in favor of the prevailing party that the court can see that the jury were not misled by an erroneous charge of the court, the judgment will be affirmed notwithstanding such error. Hall v. Sroufe, 52 Ill. 421; Watson v. Woolverton, 41 Ill. 241; Smith v. Binder, 75 Ill. 492; but if' it does not clearly appear that no injury resulted from the error, a reversal of the judgment will follow. Ruff v. Jarrett, 94 Ill. 475.
For the reason stated the judgment will be reversed and the cause remanded.
Judgment reversed.