L as toper(after stating the facts.) The court declared the law correctly. Scienter was averred denied. Hence the onus was upon appellee to show that appellant knew, or had notice of such facts as would make it chargeable with knowledge, that the cattle were infected, and liable to communicate the disease.
No actual knowledge of the infected condition of the cattle is brought home to the company. But appellee contends that, it being shown that these were Texas cattle, and that Texas is infected territory, these facts were sufficient to charge appellant with knowledge that the cattle being transported by it on this occasion were infected, and of a kind to communicate their infection to other cattle upon the range where they escaped.
% contutm. In its last instruction the court told the jury that if plaintiff (appellee) “knew or had notice that stray cattle were from the wrecked train, and that they were Texas cattle, and from a district infected with Texas fever, and liable to communicate disease, and that with this knowledge he negligently permitted such cattle to frequent the pen in which his own cattle stayed, and this contributed in any respect to his own injury, you will find for the defendant, for the reason that when the wrong of both parties contributed to the injury the law declines to apportion the damages, and leaves the injured party without compensation.” If the theory contended for by counsel be correct (which it is unnecessary to decide) the same rule which charges the railroad company with knowledge charges appellee with knowledge ; and the above instruction, when applied to the facts, makes the verdict of the jury clearly erroneous. Nor the case which appellee has made for himself by his own evidence is this: He knew these were Texas cattle; he knew Texas was infected territory; he had been forewarned of the great dang'er from Texas fever, for “ he had seen lots of it, had seen cattle dying and dead all over the prairies ” in Texas. Yet, knowing the dread consequences of this pestilential fever, it appears that he provoked two of the train-wrecked and bruised brutes, with luscious provender, to take up at his lot, and permitted them to consociate with his own herd, until they inoculated the whole range round about the mill with the deadly germ from their droppings.
With the knowledge he had of Texas fever, and the knowledge he ought to have had (applying to him the same rule his counsel would have us apply to the railroad) of infected animals, ordinary prudence, even the slightest consideration for the safety of his own cattle, would have suggested the urgent necessity, upon the first discovery of these infected cattle with his own, of isolating them, or driving them to the nearest station, a short distance away, or else to have immediately notified the railroad officials, who, it appears, were anxious to have information concerning them. Instead of doing this, he waited for the reward.
If the learned counsel be correct in his theory with reference to the appellant being charged with knowledge of the infection, his client, being also charged with such knowledge, has certainly contributed to his own hurt.
If this theory be not correct, and he depends upon the actual knowledge of the company, without any knowledge of his own, as he alleges in the complaint, then is the verdict entirely without evidence to support it.
Upon any view presented by this record, the verdict and judgment is erroneous.
Reversed and remanded.