Argument for Respondent.

210 U. S.

v. Odil, 96 Tennessee, 61; Mer. Dis. Tr. Co. v. Kahn, 76 Illinois, 520; 1 Am. & Eng. Enc. of Law (2d ed.), 594; 5 Am. & Eng. Enc. of Law (2d ed.), 422, 426; Hutchinson on Carriers, §§ 190, 191; Lawson on Bailments, § 127; 6 Cyc. of Law & Pro. 383; Marsh v. Union Pac. R. R. Co., 9 Fed. Rep. 873; Insurance Co. v. LeRoy, 7 Cranch, 26; Hostetter v. Park, 137 U. S. 30, 40; Constable v. Steamship Co., 154 U. S. 51, 61; Texas & P. Ry. Co. v. Eastin (Texas), 102 S. W. Rep. 105.

Mr. Gardiner Lathrop and Mr. Robert Dunlap, with whom Mr. William R. Smith and Mr. C. Angevine were on the brief, for respondent:

As each party asked for a peremptory instruction in its favor and argued and submitted such instructions together to the court, and the court determined the same, it must be assumed that they both submitted the case to the court to find the facts upon the assumption that under the evidence there was only involved a question of law as to liability or nonliability. Beuttell v. Magone, 157 U. S. 154; Bankers' Mutual Casualty Co. v. State Bank of Goffs, 150 Fed. Rep. 78; City of Defiance v. McGonigale, 150 Fed. Rep. 689; Johnson's Admr. v. C. & O. Ry. Co., 21 S. E. Rep. 238; S. C., 91 Virginia, 171; Insurance Co. v. Wisconsin Central Ry., 134 Fed. Rep. 794, 798; Empire State Cattle Co. v. A., T. & S. F. Ry. Co., 147 Fed: Rep. 459; Nashville, C. & St. L. Ry. Co. v. Sansom, 84 S. W. Rep. 615, 616; S. C., 113 Tennessee, 683.

Nevertheless, as the evidence was of such a conclusive character in favor of the defendant that the trial court would have been obliged to set aside a verdict in favor of plaintiffs, it therefore properly directed a verdict for the defendant. This is true not only in respect to any question of alleged negligence, but also in respect to the question whether such alleged negligence was the proximate cause of the damage and also whether there was any wrongful deviation from instructions, if any, of the shipper, or from any alleged agreement of defendant. West v. Camden, 135 U. S. 508; Southern Pacific Co. v. Pool, 160

210 U.S.

Argument for Respondent.

U. S. 440; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Rep. 400; Christenson v. Metropolitan Street Ry. Co., 137 Fed. Rep. 708; Bowditch v. Boston, 101 U. S. 18; Patton v. Texas & Pacific Ry. Co., 179 U. S. 658.

The overflowing of the Kansas City stock yards by this flood being sudden, extraordinary and unprecedented, defendant cannot be held liable for damages caused in consequence thereof as it could not be expected to anticipate the unusual character of the same. The antecedent delay at Strong City and Wellington, as well as the taking of the cattle to and depositing the same in the Union stock yards for the connecting carrier was not culpable negligence, as it could not be anticipated at the time that the disaster complained of was likely to result from any of the preceding acts of the defendant. Such a disaster was not then probable. Lightfoot v. St. Louis & San Francisco Ry. Co., 104 S. W. Rep. 483; Insurance Co. v. Boon, 95 U. S. 130, 131; Daniel v. Directors &c. of Metropolitan Ry. Co., L. R., 5 Eng. & Ir. App. (House of Lords) 45; Milwaukee &c. Ry. Co. v. Kellogg, 94 U. S. 475; Kreigh v. Westinghouse, Church, Kerr & Co., 152 Fed. Rep. 120; Cole v. German Savings &c. Society, 124 Fed. Rep. 113; Stetanowski v. Chain Belt Co., 109 N. W. Rep. 532; Mo. Pac. Ry. v. Columbia, 65 Kansas, 390; S. C., 69 Pac. Rep. 338; Morrison v. Davis, 20 Pa. St. 175; Railroad Company v. Reeves, 10 Wallace, 176; C., St. P. M. & O. Ry. v. Elliott, 55 Fed. Rep. 949-952; Scheffer v. Railroad Company, 105 U. S. 249; Glassey v. Worcester Con. St. Ry. Co., 185 Massachusetts, 315; S. C., 70 N. E. Rep. 199; Stone v. B. & A. R. R. Co., 171 Massachusetts, 536; S. C., 51 N. E. Rep. 1; Vol. 7, Rose's Notes to U. S. Rep., Reeves Case, pp. 297, 298; Hutchinson on Carriers, 2d ed. by Meachem, §§ 193-195; 5 Am. & Eng. Enc. of Law (2d ed.), 259, 260.

As during the transit over defendant's lines a necessity arose which showed that the cattle could not be delivered by it to the Burlington road at Atchison, as it had intended to do, without further delays likely to injure the shipment, it was in any aspect of the case justified in arranging for delivery to

the Missouri Pacific at Kansas City and in transporting the cattle to the Union stock yards at that place. In doing so there would have been no wrongful deviation even if the contract had expressly provided for carriage over its own line to Atchison. It was simply acting in accordance with a well-established custom. Hostetter v. Park, 137 U. S. 31, 40; M., K. & T. R. R. Co. v. Olive, 23 S. W. Rep. 526; 1 Am. & Eng. Enc. of Law (2d ed.), 1063; Ray's Negligence of Imposed Duties, 317; International &c. Ry. Co. v. Wentworth, 27 S. W. Rep. 680; Propeller Niagara v. Cordes, 21 How. 7; Reade v. Comm. Ins. Co., 3 Johns. 352; Foster v. Great Western Ry. Co., L. R. (1904), 2 K. B. Div. 306.

MR. JUSTICE WHITE delivered the opinion of the court.

With the object of saving them from destruction by the flood which engulfed portions of Kansas City on May 31 and the first week of June, 1903, more than three thousand head of cattle belonging to the petitioners, which were in the Kansas City stock yards, were driven and crowded upon certain overhead viaducts in those yards. For about seven days, until the subsidence of the flood, they were there detained and could not be properly fed and watered. Many of them died and the remainder were greatly lessened in value. These actions were brought by the petitioners to recover for the loss so sustained upon the ground that the cattle were in the control of the defendant railway company as a common carrier, and that the loss sustained was occasioned by its negligence.

The railway company defended in each case upon the ground that before the loss happened it had delivered the cattle to a connecting carrier, but that if the cattle were in its custody it was without fault, and the damage was solely the result of an act of God, that is, the flood above referred to.

As the cases depended upon substantially similar facts and involved identical questions of law, they were tried together, and at the close of the evidence the trial court denied a peremp

tory instruction asked on behalf of the plaintiffs, and gave one asked on behalf of the railway company. 135 Fed. Rep. 135.

While there was some contention in the argument as to what took place concerning the requests for peremptory instructions, we think the bill of exceptions establishes that at the close of the evidence the plaintiffs requested a peremptory instruction in their favor, and on its being refused duly excepted and asked a number of special instructions, which were each in turn refused, and exceptions were separately reserved, and the court then granted a request for a peremptory instruction in favor of the railway company, to which the plaintiffs excepted.

On the writs of error which were prosecuted from the Circuit Court of Appeals for the Eighth Circuit that court affirmed the judgment on the ground that as both parties had asked a peremptory instruction the facts were thereby submitted to the trial judge, and hence the only inquiry open was whether any evidence had been introduced which tended to support the inferences of fact drawn by the trial judge from the evidence. One of the members of the Circuit Court of Appeals (Circuit Judge Sandborn) did not concur in the opinion of the court, because he deemed that as the request for peremptory instruction made on behalf of plaintiffs was followed by special requests seeking to have the jury determine the facts, the asking for a peremptory instruction did not amount to a submission of the facts to the court so as to exclude the right to have the case go to the jury in accordance with the subsequent special requests. He, nevertheless, concurred in the judgment of affirmance, because, after examining the entire case, he was of opinion that prejudicial error had not been committed, as the evidence was insufficient to have justified the submission of the issues to the jury. 147 Fed. Rep. 457.

The cases are here because of the allowance of writs of certiorari. They present similar questions of fact and law, were argued together and are, therefore, embraced in one opinion. The scope of the inquiry before us needs, at the outset, to be accurately fixed. To do so requires us to consider the question

which gave rise to a division of opinion in the Circuit Court of Appeals. If it be that the request by both parties for a peremptory instruction is to be treated as a submission of the cause to the court, despite the fact that the plaintiffs asked special instructions upon the effect of the evidence then, as said in Beuttell v. Magone, 157 U. S. 154, "the facts having been thus submitted to the court, we are limited in reviewing its action, to a consideration of the correctness of the finding on the law. and must affirm if there be any evidence in support thereof." If, on the other hand; it be that, although the plaintiffs had requested a peremptory instruction, the right to go to the jury was not waived in view of the other requested instructions, then our inquiry has a wider scope, that is, extends to determining whether the special instructions asked were rightly refused, either because of their inherent unsoundness or because, in any event, the evidence was not such as would have justified the court in submitting the case to the jury. It was settled in Beuttell v. Magone, supra, that where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed and in effect submit to the trial judge the determination of the inferences proper to be drawn from them. But nothing in that ruling sustains the view that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is conflicting or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of Beuttell v. Magone, by causing it to embrace a case not within the ruling in that case made. The distinction between a case like the one before us and that which was under consideration in Beuttell v. Magone has been pointed out in several recent decisions of Circuit Courts of Appeals. It was accurately noted in an opinion delivered by Circuit Judge Severens, speaking for the Circuit Court of Appeals for the Sixth Circuit, in Minahan v. Grand Trunk Ry. Co., 138 Fed. Rep. 37, 41, and was also lucidly stated in the concurring opinion of