The delivery of the check to appellee by appellant was frima facie evidence, not only of the delivery of the trunk to appellant, but also that it was in good order when received. This pi'imafaeie case could be overcome, as to the condition of the trunk, by proof showing that it was not in good order when received by appellant; by showing that it was in the same condition when received by appellant as when delivered to appellee at Tamaroa. There is no proof as to the time the trunk arrived in St. Louis, or when it came into the possession of appellant. It is shown that appellee arrived in St. Louis on Thursday afternoon, October 4th; the presumption would be in the absence of proof, that her trunk reached St. Louis at the same time she did. The first time that the evidence touches the trunk after its arrival in St. Louis is when it was received by the baggage-man on the train of appellant, a few minutes before 3:45 p. m., Friday, October 5th. How long before that it came into the possession of appellant is not shown. What happened to the trunk during that time is not shown. To relieve appellant from liability for the damage to the contents of the trunk, it should appear that it was in the same condition when it first received the trunk, as when delivered to appellee at Tamaroa; this the evidence does not. show.
It is further urged that the evidence does not disclose that ' the contents of the trunk were proper articles of baggage. The contents are spoken of by appellee as her clothing, and mentions particularly a cloak. Another witness speaks of the contents as garments. No objection was urged below upon this point, and we think the evidence tends clearly to show that the trunk contained appellee’s wearing apparel.
It is said that certain instructions for the plaintiff below, copied into the bill of exceptions, are not marked “ given.” The record recites, “and thereupon the court gave to the jury, on behalf of plaintiff, the following instructions, ” and then copies plaintiff’s instructions, including those not marked “ given.” It is clear from the record that these instructions were given by the court to the jury, and while it is the duty of the court under the statute to mark all instructions read to the jury “ given,” an omission, such as occurred in this case, could work no injury to any one. The fourth instruction is awkwardly drawn and not cléarly intelligible; stilt we can see that appellant was not injuriously affected by it. The evidence does show that appellee bought her ticket over appellant’s railroad, and Wabash, Chester & Western Railroad, to Tamaroa, and received a check for her baggage through, and that it was a joint check for both roads.
The sixth instruction tells the jury, in effect, that it was incumbent on appellant to relieve itself from the liability arising upon the prima facie case made by plaintiff, to show that the trunk was in a damaged condition when it received it, and was not damaged while in its possession, and further that if appellant received the trunk from the road to whom the check received from plaintiff was surrendered as in good condition, when it was in bad condition,, this was negligence on the part of the appellant. The latter clause of this instruction should not have been given, but quite a number of defendant’s instructions clearly and pointedly counteract any injurious effect that could have been done by this latter clause of plaintiff’s sixth instruction.
While the record in this case is not free from error, we do not find upon the whole record such error as should reverse the case. The judgment of the Circuit Court is affirmed.
Judgment affirmed.