dissenting. I am unable to concur in the decis-. ion of the majority of the court. The appellee’s instruction, one only being given, might be open to the criticism passed upon it by the majority of the court if it stood by itself, as tending to mislead the jury, in respect to the appellant’s liability as a common carrier in the transportation of live stock, and in the appellee’s right to recover damages arising from other causes than the negligence and default of appellant, notably those resulting from the mismanagement and default of appellee himself after receiving the mare and colt in Peoria.
With all due respect to my brethren, I am unable to see how it is within the bounds of reasonable probability that the jury could be so misled by the instruction, in view of the fact that at the instance of the appellant, the court instructed the jury as to the law, touching its liability as fully and favorably as could properly be asked.
By appellant’s instructions, two, five, six and nine, the jury was expressly told in various forms, that it would not be liable for any loss arising from the overheating of the mare, unless such overheating arose from its fault or negligence in not furnishing a suitable car, or in not taking proper care of the mare and colt, while being transported; and by the appellant’s ninth instruction, the jury were told that a common carrier is not liable for injury to property in its care, arising through inherent defects, or causes naturally existing in the freight, and by instructions eight and thirteen given for appellant, the jury were told that if the death of the mare and injury to the colt, was the result of the neglect of appellee in not taking proper care of her, or in treating her improperly after he received her, then the appellant was not liable for such death and injury.
In some instances it is not easy to see that imperfections and inaccuracies in instructions will not mislead the jury, but in this case it seems to mo that the instructions given on both sides taken as a series can be easily harmonized, and that a jury of ordinary intelligence could not be misled as to the law.
The first clause of the appellee’s instruction states as a matter of law that it was the duty of appellant to transport and deliver tiie mare and colt at Peoria in good order and condition.
This undoubtedly was its general duty and there appears to be no impropriety in so telling the jury. The instruction does not say that nothing could excuse this duty save the act of God or the public enemy, or that it was an absolute inexcusable duty.
The second clause tells them that if appellant neglected such duty, and by reason of such negligence the mare and colt were injured or destroyed without the fault of appellee, the jury should find for him.
It is supposed that the jury would understand by the instruction that the court intended to tell them that as a matter of law, it was the duty of the appellant to deliver the mare and colt and that no excuse could be given for non-delivery, and that liability would exist if he failed to deliver the property, that it was absolute and inexcusable negligence not to deliver. But the instruction does not say so. It is only supposed that the jury might be misled to think so. In summing up the case the jury would inquire in what negligence of duty to deliver consisted.
There was a large amount of evidence taken to show that' the car in which the mare and colt were shipped was fit for the purpose and that the stock was loaded by appellee’s agent, and that reasonable care was taken by appellant to prevent injury to it in its transportation. Then the jury were told in specific instructions given for appellant in what negligence of duty to safely deliver consisted.
That it was bound to furnish a safe and suitable car fit for the purpose, and was to take reasonable care to save the stock from injury while being shipped, and that a neglect of this only would alone render it liable. The same may be said in regard to damages that may have accrued on account of appellee’s fault in not taking proper care of, or in mistreating the stock after he received it. Under such a series of instructions how was it possible the jury could be misled as to the law? It seems to me clearly they were not.
There being no other perceivable error I think the judgment should be affirmed.