('dissenting). This case was here on a former appeal, and this court on that appeal said:
“Plaintiff proved the use of the serum, that it had been properly administered, and the death ■ of his hogs, and rested. Defendant then moved! for a directed verdict. This motion was overruled, and we thing properly so. Plaintiff, by showing that the serum was properly administered, and' that the malignant edema that caused the death of the hogs developed at the place *49where the serum was injected into the hog, made out a prima facie case.”
This must be held to be the law in this case.
I do not think the defendant has rebutted the prima facie case made by the plaintiff. The plaintiff had judgment in his favor on both the first and! second trials, and, unless some error of law has occurred in this trial, he should! be entitled to his judgment.
Defendant claimls that it had met plaintiff’s case by showing that the serum and virus were properly prepared and therefore could not contain the poisonous spores, and it then suggests it might he possible that the plaintiff used improper methods in administering the serum. The method of administering the serum was minutely shown, not only by the veterinary, but by those who assisted him. In every single instance the trouble commenced at the very spot where the serum was injected, and there was not a single case of infection where the virus had been used!. The conclusion necessarily follow^ that the serum1 contained the poison that caused the death of the animals. The plaintiff! having made a prima facie ease, it becamie a matter for the jury and not for the court to say whether the appellant’s evidence was to be accepted ás true.
The defendant’s plant is located in' Sioux Falls, about one-half or three-quarters of a 'mile from the stockyards and about one-quarter of a mile from the Morrell Packing Plant. In the manufacture of the serum at defendant’s plant the hogs were kept in a number of small pens. There is no testimony on the part of the defendant showing cleanliness of- these pens. From this fact alone the jury might believe the contamination came from the pens or from the packing plant. The vessels used in the proJ cess of vaccination had been boiled and sterilized by the veterinarian. The wound was cleaned and was washed with iodine, and every precaution taken to prevent infection. The bottles were kept in the refrigerator with a temperature of about 40 degrees. The defendant, however, failed to show that any of the bottles Were cleaned or sterilized1 before being stored.
Dr. Laird, supervisor of defendant’s plant, came to defendant’s farm1. He picked! up the bottles used in the three pastures where the hogs were vaccinated, evidently for the purpose of bac*50terial analysis of the remaining contents of these containers, but the results of such analysis if made were not revealed.
The regulations required that one of the three containers of the test sample should1 ibe held for at least six months for the purpose of showing test sample of such containers.
It is pertinent to ask, “What became of these test 'containers?” and “What examinations were made to ascertain whether the solution contained these poisonous spores?” It appears that the contamination came from five containers, “serial B12,” that had been shipped for use on plaintiff’s hogs. Defendant’s superintendent was at plaintiff’s place, but he made no microscopic test or any post mortem examination of the dead hogs.
Dr. ¡Sadler killed one of. the hogs that was nearly deadl and opened him up. He opened down toward the intestine, - and it was found to be all dried up and burned brown.' The blood was all burnt up. . The body of the hog was blackened where the serum entered.
This record presents a case of disputed facts for the jury to pass upon. To order a dismissal of plaintiff’s case under’ these circumstances 'will deny the constitutional right of jury trial.
Note. — (Reported in 195 N. W. 835. See, Headnote (1), American Key-Numbered Digest, Evidence, Key-No. 535, 22 C. J. Secs. 604, 609; (2) Druggists, Key-No. 10, 19 C. J. Secs. 66, 68; (3) Appeal and error, Key-No. 1176(6), 4 C. J. Sec. 3227.