This action was brought to recover damages for negligence in transportation of fat cattle from Grundy county, Missouri, to Chicago, Illinois, where they were to be sold on the market at that city. The judgment in the trial court was for the plaintiff.
This is the second appeal of the case by the defendant. It will be found reported on first appeal in 118 Mo. App. 644. It is conceded that the facts are the same as upon the former trial and we do not see any good reason for its being again brought before us. By reference to the case, as reported, it will be seen that the judgment Was reversed for but- one reason, and that was the refusal of an instruction offered by defendant relating to the delivery of the cattle when they arrived at Chicago. We held that delivery at the unloading platforms of the Union Stock Yards in Chicago.. was full performance as to delivery and that defendant *121was not responsible for damages after that time. On retrial that instruction was given and again plaintiff prevailed. Not only was tbe instruction given, but others of like import. Among others was No.-8, reading as follows: “When the carrier placed the cars at the unloading platforms in a position to be unloaded and delivered the billing to the Stock Yards Company, provided it used reasonable diligence in transporting them thereto, it performed every act required of it as a carrier to complete the delivery and defendant is not liable for damages that resulted from a subsequent delay caused either by the failure of the Stock Yards Company to post on the bulletin board the arrival of the stock or of the consignee to receive it promptly.”
Defendant offered the instruction without the words in italics and the court interlined them and gave it. It is too plain for misunderstanding that the court wanted to distinguish between damages to plaintiff arising after delivery at the stock.yards and damages which arose on account of negligence of defendant during transportation before arrival. In connection Avith other instructions there is no reasonable ground to suppose the jury misunderstood the issues in this respect.
As before stated, the case, on second trial, Avas like that made on the first. And this Avas even to the reading of great part of the evidence preserved in the bill of exceptions taken at the first trial. The evidence at first trial given by witness Clayton was thus read (he being out of the State), and defendant objected to it “because plaintiff used no diligence in trying to procure his attendance.” It is proper to read evidence as preserved in the bill of exceptions “in the same manner and with like effect as if such testimony had been preserved in a deposition in the cause.” [Sec. 8149, R. S. 1899.] By reference to section 2904 of the statute, it will be seen that a deposition may be read: “First, if the witness resides or is gone out of the State.” Dili*122gence to get him back into the State and in attendance at court is not made a condition to reading a deposition and therefore need not be shown to authorize the reading of evidence from a bill of exceptions.
We have gone over the several objections urged against the judgment. There are many of them and they are presented with all the vigor as if the case was new. We do not consider that any of them should be given sufficient weight to cause a disturbance of the result now twice obtained.
The judgment will be affirmed.
All concur.