This case is before us on rehearing. Appellee had judgment in the court below for the value of a thoroughbred stallion, which, it is charged, died through the neglect of appellant in transportation. The former opinion, ante, p. 175, clearly states the allegations contained in plaintiff’s petition, For answer the defendant alleged that the destination of the horse so shipped over its line of railroad was Mexico City, Missouri, on the Chicago & Alton Railroad, with which its line connected at Kansas City, Missouri; denied plaintiff’s ownership of the horse, and called for proof thereof; alleged that it was part of the contract of shipment that plaintiff was to furnish a caretaker of said horse, who should go along with the same and look after and care for it and give it proper and necessary care and attention, and that said agent of plaintiff did accompany and give attention concerning the handling and care of said horse; that plaintiff did not deliver the horse to defendant in time to be carried any faster, or to be delivered to the connecting carrier at Kansas City any quicker than the same was carried and delivered; that the shipment was made without any unusual and unnecessary delay, and was promptly delivered on time, in the regular course of business, to the connecting carrier, the Chicago & Alton Railroad at Kansas City, without any fault or negligence on the part of defendant, its agents or servants; that, if said horse in said shipment referred to sustained any injury, such injury was not caused by any fault or negligence on the part of defendant, nor while the horse was in its possession, but, if any injury was sustained by it in any way, the same was the result of the plaintiff’s own negligence and that of his agent in charge of said horse, and without fault of the defendant; adding a general denial. The plaintiff’s reply was a general depial.
*182The main questions discussed at the bar are: (1) Was appellant guilty of negligence in failing to ship the horse on a fast train which left Lincoln at 6 o’clock on the evening of shipment, and in shipping it on a later and slower train which did not leave that city until 10:55 on the evening of shipment? (2) Was appellant guilty of negligence, after the arrival of the horse in Kansas City, on the second day after its shipment, in failing to place the car in a position so that the horse could be unloaded, for an unreasonable length of time after it was notified by appellee’s agent that the horse Avas sick and needing attention, and that he had decided not to ship the horse farther, but desired to remove it from the car for treatment? (3) Was appellee guilty of contributory negligence after the horse was unloaded in leading it a distance of two miles through the streets of Kansas City in a storm of snow and sleet to a veterinary hospital?
As to points 1 and 2, the evidence is decidedly conflicting. As to the third point, there is no conflict in the evidence. The caretaker of the horse, who went with it and took care of it on the trip, was one J. R. Jones, who, it appears from the evidence, was an entirely competent person for such a charge. The evidence shows that at the time of the shipment, December 14, 1904, appellant had two freight trains leaving Lincoln for Kansas City; one, No. 120, a fast through freight, which also carried passengers and express, being scheduled to leave Lincoln at 6 P. M., and the other, No. 110, a slower freight, scheduled to leave at 7 P. M. No. 120 left Lincoln that evening on time. No. 110 left 3 hours and 55 minutes'late; viz., at 10:55 P. M. Appellee testifies that, when he made arrangements Avith the agent of appellant for shipping the horse, it was with the understanding and agreement that the horse should go on No. 120. This part of his testimony is corroborated by appellant’s employee with whom he had' the transaction. Appellee also testifies that he was advised by appellant’s employee that if the horse was loaded by 5 o’clock it would be in time for that train. This is *183denied by appellant’s employee, who says he told appellee that the horse must be loaded by 4:30 o’clock. Appellee anti his caretaker, Jones, both testified that the horse was loaded before 5 o’clock. In their testimony on rebuttal they both placed it as early as 4:30 o’clock, but in their examination on the case in chief they placed it as being-before 5 o’clock. Appellee, as an explanation of why he Avas so sure that it Avas before 5 o’clock, said that the sun Avas still shining when they got the horse loaded. If this is true, then the horse was loaded before 5 o’clock, as it is a matter of common knowledge that on that day of the year the sxxn sets before that hour. This testimony on the part of appellee and the Avitness Jones is contradicted by two employees of appellant, one of whom says he Avas present Avhen the horse was loaded, the other basing his testimony upon Avhat had been told him.
Train No. 120 left Lincoln that evening on time at 6 P. M., but the car in which the horse had been loaded Avas not attached to that train. The car was attached to train No. 110, Avhich, as before stated, did not leave Lincoln until 10: 55 P. M. Train No. 120 arrived in Kansas City early in the forenoon of the next day, December 15, Avhile train No. 110 did not reach Kansas City until 4: 50 o’clock of the second morning after shipment, December 16. Train No. 110 was delayed en route for nearly tAvo hours at Table Rock, and did not arrive at St. Joseph until about noon on the 15th. The car Avas then placed on a side track, and remained there until a feAV minutes after 11 o’clock that night — a delay of about 11 hours. It reached Kansas City, as stated, at 4:50 o’clock the next morning. On arrival there, Jones, the caretaker, Avent to the Alton freight house to ascertain what time they could get away from there. He was advised by some man there that he Avould have to come back after the day man came on, which would not be very long. He then Avent back to the car and fed and Avatered the horse. He says the car Avas then standing between the Burlington and Alton freight depots. After feeding the horse he went and got *184his breakfast. On his return he located the car farther down- in the yard — “quite a long way down.” He says when he went to water and feed the horse in the morning he noticed that he seemed to be a little chilly, and untied him and led him back and forth, exercising him in the car; that he exercised him quite well in the car; that, after getting his breakfast, he returned to the car about 11 o’clock, when he discovered that the horse was showing a good deal of distress; that he was “taking sick pretty fast”; that he “went straight and called a veterinary”; that before he called the veterinary he went to the Alton freight depot and notified them that the horse was sick, and thai he would not ship any farther. The veterinary whom lie called was Dr. R. C. Moore, a graduate of the Chicago Veterinary College in 1887, and president of the Kansas City Veterinary College, a man well up in his profession, as appears from the record, and owning a hospital for the, treatment of sick horses. Dr. Moore arrived, and went into the car to see the horse about 12: 30. While Dr. Moore was in the car examining the horse, Jones went to the Bur lington office, and told them the horse was sick, and that he wanted to unload him immediately. While he was talking, Dr. Moore came in, and also told the representative of appellant that the horse was sick and should be unloaded at once. Dr. Moore and Jones both testify that the agent promised to have the car set up to a chute or platform immediately, so that the horse could be unloaded, but, before doing so, demanded that the contract be surrendered and the freight to Kansas City paid. Dr. Moore and Jones both testify that Jones paid the freight as demanded at 1:20 o’clock. The agent testifies that this was done at 3:50 P. M. After this interview Dr. Moore returned home. Jones testifies that between 12 and 1 o’clock there was sent to the agent of the Burlington this message from the agent of the Alton: “I understand this horse is sick and in need of attention. Must therefore refuse shipment.” Jones further testifies that during the afternoon he made repeated visits to the agent of appel*185hint and also to the day yardman, urging them to set up the car so that he could unload the horse; that he told the agent that it was a valuable horse and was sick and needed attention; that the car never was moved from the place where he found it on his return to it after breakfast, at 11 o’clock in the forenoon, until they coupled on to it to run it up to the platform for unloading at 7 o’clock that evening. He says that, after the night yardman came on duty at 6:30 that evening, he went’ to him and told him his troubles; that the night, man told him that he would attend to it. He seems to have been expeditious, for at 7:10 P. M. the horse was unloaded. Appellant’s agent at Kansas City testifies that, when the car arrived in the morning, it was delivered to the yards of the Chicago & Alton, and was not returned to their yards until 4:15 that afternoon; that during all of that time it was beyond their control. The agent who gave this testimony is so squarely contradicted by Dr. Moore and Mr. Jones as to the time of the payment of the freight that .the jury evidently discredited him, and the conviction is forced .upon us that, if the message from the agent of the Alton, above recited, was sent to him between 12 and 1 o’clock, he must have been negligent indeed in failing to have that car returned to his custody earlier than 4:15 in the afternoon.
Defendant’s witnesses testified that the car was delivered to the Alton at 12:15 and left on the Alton tracks. Jones says it was never moved after 11 A. M. until after the night man came on duty in the evening. Defendant’s general yar dm aster, who was examined as to the transfer of cars from the Chicago & Alton tracks, testified that such transfers could only be made between the hours of 11 A. M. and 4 P. M. He said: “On account of us having to go through the Union depot, and over the Union depot property, they .will not allow us to deliver transfers only during those hours.” Yet the chief yard clerk testified that the car was received back from the Alton at 4:15. If they were not allowed to deliver transfers after 4 o’clock, the jury may well have discredited the testimony *186that the car was not returned to defendant’s yards until 4:15, and have accepted the testimony of Jones that the car was never moved from the place where he found it. after breakfast, about 11 o’clock A. M., until it was switched up to the platform for unloading in the evening. Jones unquestionably knew where the car was every hour of that day. He was using every effort to have it run up to some platform so that he coiild unload. If his testimony is true, and of that the jury were the judges, the car was not delivered to the Alton at 12:15 and returned by the Alton at 4:15, but, on the.contrary, was never actually out of appellant’s yards and control.
The evidence further shows that during the night prior to the arrival of the horse in Kansas City the weather changed and began to grow colder. During the forenoon some snow fell, but Dr. Moore testifies that the snow had dried off. He says: “When I was down at the car, it was a fairly cold day, a little cloudy. It had been snowing in the forenoon and had dried off. The streets were comparatively dried off when I was at the depot, and remained dry until probably about 4 o’clock in the evening.” Jones also testifies that the weather was good that day until about 4 o’clock in the evening. About 4 o’clock it began to snow1 and sleet, and from that time on until after the arrival of the horse at the hospital the storm seems to have been more or less continuous. Jones testified that, when the horse came off the car, he acted fairly well; did not show anything near the distress that he did farther on on the trip. They led the horse behind a buggy to the hospital, a distance of about two miles, during the storm above referred to. When they reached the hospital the horse was bleeding at the nose, and showing great distress and exhaustion. Dr. Moore says that at that time his case was hopeless. The next day the horse died. On cross-examination Dr. Moore was interrogated by counsel for appellant as to whether or not there were stables near the depot to which the horse might have been taken: “Q. There are good barns? A. Fairly good barns; but they are *187tie stalls, and not very well protected from breeze, cold air. They are not very good barns for sick horses. Q. I am not asking you that, I simply asked you if the barns were good shelter? A. I suppose, yes; plenty of stables— Q. Well fit for taking care of horses? A. Of well horses; yes, sir. Q, You go there I presume to those barns, some of the places, to treat horses, do you not? A. Yes, sir; and take them from these places to the hospital frequently.” It further appears from the evidence that, in taking the horse from the car to the hospital under the circumstances under which he was taken, Jones was acting under the direction of the veterinary. In answer to a question as to whether or not he was present when the horse was unloaded, Dr. Moore said: “I sent my assistant, Dr. Merker; had him come with the horse to the hospital, * * * I had my assistant remain with Mr. Jones until the car was set out to unload him.” From this it would appear that Jones was acting under the guidance of the veterinary whom he had employed in the emergency which confronted him.
Appellant insists that the taking of the horse through the streets of Kansas City for a distance of two miles to the hospital in the storm was such negligence as precludes a recovery in this case. Appellee insists that it was not negligence; and, to our minds, this is the really important question in this case. This point, it seems to us, must be determined by the rule of what a reasonably prudent man would have done in Mr. Jones’ situation, under the surrounding circumstances and conditions. We think that was a question for the jury. It was for the jury to say whether or not a reasonably prudent man, under those circumstances, would have followed the guidance of the veterinary surgeon, whom he had employed, and have taken the horse to the hospital, as Jones did, or whether a reasonably prudent man, under those circumstances, would have refused to take the horse, and have sought shelter for him in some of the other stables in that neighborhood. On a careful reading of the entire record, and a *188careful consideration of all the facts and circumstances disclosed, we think that the questions: (1) Did the appellant agree to ship the horse on train No. 120? (2) Was the appellant guilty of negligence in not doing so, and holding it for shipment on the later and slower train? (3) Was it negligent in delaying the shipment of the horse from Lincoln from the time it was loaded in the afternoon until 10: 55 that night? (4) Was it negligent in delaying the shipment of the horse for 11 hours at St. Joseph? (5) Was it negligent in failing to switch the car up to some chute or platform, where the horse could be unloaded, during the ‘entire afternoon of the day the horse arrived in Kansas City, in the face of the repeated requests of Jones that it do so? (6) The question as to whether or not appellee was negligent in permitting the horse to be taken from the car to the hospital during the storm referred to — -were all questions of fact for the determination of the jury. We have examined the instructions of the court, and, in our opinion, these questions were all properly submitted. The jury have decided (hese questions in favor of appellee, and there is ample testimony in the record to sustain their verdict. We do not think the statement by the agent of appellant that the great number of cars in the yards at Kansas City, and the large amount of their business, was such that they could not place the car where it could be unloaded any sooner than was done, is either a sufficient or truthful excuse for their long delay. They were advised, both by Jones and the doctor, that this horse was sick; that he was a valuable horse, and that it was necessary for his treatment that he should be unloaded at once, and yet no steps whatever were taken until the night man came on duty at 6:30 that evening. We regard the conduct of appellant’s agents at Kansas City as entirely inexcusable, and think that defendant should be held responsible for their negligence. If the horse had been shipped on train No. 120, it would not only have reached Kansas City, but would have reached its destination at Mexico City, Mis*189sourí, long before the storm referred to, and appellee would undoubtedly have suffered no injury. The negligence of appellant in not keeping its agreement with appellee, in delaying the shipment of the horse, and in not promptly furnishing facilities for unloading it, under the circumstances shown, were clearly the proximate cause of the injury; and we cannot say, as a matter of law, that the jury were wrong in finding that the act of appellee in taking the horse from the car to the hospital, under the circumstances 'under which he ivas taken, was such action as any reasonably prudent man would have taken under the same circumstances.
We recommend that the former judgment of this court be vacated and set aside, and that the judgment of the district court be affirmed.
Calkins and Root, CC., concur.By the Court: For the reasons stated in the foregoing-opinion, the former judgment of this court is vacated and set aside, and the judgment of the district court is affirmed.
Judgment accordingly.