Page:Federal Reporter, 1st Series, Volume 4.djvu/720

706 PEDEEAIi BEPORTBB. �a senior discovery in the aotual possession of another. And 80 the evidence tending to prove that defendants or their grantors may have been in possession of the shaft in contro- versy at the time of plaintifif'g location, and plaintiff having failed to meet that evidence successfuUy, the motion for in- junction will be denied. Ail assumptions of fact have of course been made on the proofs as they now stand. At the hearing, if the facts shall appear to be different, the view ûQ-vr expressed may be modified. ���Oemsbt ». U. p. E. Co. �[Oireuit Court, D. Cdorado. November 17, 1880.) �1. Railboad — Fbbight— Tbanspoktation.— It is thedutyof a raîlroad Company engaged as a common carrier, when they receive freight to be tranaported, to carry it without unnecessary delay. �ÎS. Same— Samb — Same. — A delay of 24 hours at a station on the way is an unnecessary delay, unless it is explained and excused by something ■which the law recognizes as sufflcient. �3. Samb— Samb— Samb.— Such delay will not be excused by the fact that �the raiiroad company needed its rolling stock for the purpose of car- rying passengers. �4. Samb— CoNTEACT— Nbgugence.— It is settlôd, by repeated decisions �of the supreme court of the United States, that a common carrier cannot relieve himself from responsibility for his own negligence, or the negligence of his employes, by any contract that he may enter into with the shipper. �6. Samb — Samb— Samb. — A common carrier may, however, enter into �stipulations which do not relieve him in any degree from his respon- sibility for negligence, if the shipper assents and agrees to them by a special contract, either verbal or in writing. �fl- Same— SAira- Samb.— A contract, therefore, is void in so far as it as- sumes to say that a raiiroad company shall not be liahle on account of any delay in the transportation of stock. �7, Samb— Same— Samb. — Such contract is also void in so far as it requirea �the shipper to give notice of his claim for damages before he unloada the stock. �Ormaby r. Union Pacifie Ry. Co., ante, 170, affirmed. ����