UPON REHEARING.
[Opinion filed August 1, 18S8.]
Per Curiam.A rehearing having been granted in this case, we have carefully reviewed the evidence and the instructions of the court to the jury in all the light shed upon both by the very earnest and able oral and printed arguments delivered and presented by the appellant’s counsel.
The instructions, it seems to us, directed the jury with all reasonable accuracy and precision as to every point in issue upon the trial. Those refused were erroneous.
The evidence on behalf of the plaintiff below tended to prove every necessary element of a cause of action, and to support the verdict even as to the amount of damages.
There was, it is true, a conflict of evidence as to some of the facts essential to a recovery, and as to the question of damages. But the record fails to show a case where the verdict is wholly unsupported by evidence as to any one essential fact, or where -it is manifestly against the weight and preponderance of the evidence, or where the verdict is apparently the result of passion or prejudice upon the part of the jury, some one of which is necessary in order to justify this court in granting a new trial within the established rules governing in such cases.
After two examinations of the evidence in this case, we are satisfied it shows a cause of action against the defendant below as a common carrier. The defendant received a case of plaintiff’s goods at Hamburg to be carried to the port of Hew York, and there safely delivered to the defendant; at that port upon^ the arrival of the ship carrying the goods, the plaintiff caused a seasonable and proper demand to be made upon the defendant for the goods, and the defendant failed to deliver them or inform plaintiff where they -were. They were lost. That made out a cause of action and the defendant failed to show any legal justification in the premises. We may suspect that the evidence was strained so as to enlarge quantity and magnify as to quality and value of the goods, but we can not, under the evidence, demonstrate that what we suspect is fact. Upon the opinion heretofore delivered by Mr. Justice Bailey, it is the judgment of a majority of the court, that the judgment below should be affirmed.
Judgment affirmed.