ON APPLICATION FOR REHEARING
CARVER, J.This suit was brought against the Director General of Railroads and the Texas & Pacific Railway Company. Notwithstanding the fact that the railway company was dismissed from the suit on its exception that at the time of the alleged injury its railway was being operated by the federal government, the case seems to have been tried as though the railway company and not the director general was the defendant and as though the main question was whether the railway company was or was not negligent, although when the decision was rendered it was, of course, rendered not against the railway company but the director general. Even in this court the case has been argued as' though it turned on the question of the railway company’s negligence, and the original opinion herein discussed the case as though between the plaintiffs and the railway company. Really, though, the case is between the plaintiffs and the Director General of Railroads and the question is whether he was or was not guilty of negligence.
We do not mean to hold against the ruling in McHenry Horse Exchange vs. Illinois Central R. R. Co., 148 La. 49, 86 South. 649, that a railroad company is liable for the death of an animal in transit because it fails to show the cause of death where it is carried under a bill of lading providing that the railroad company should not be *436liable unless its negligence caused the injury.
We think, though, that the director general was negligent in loading the mule on a car which was defective.
The proof shows that this mule, together with a number of other animals, was loaded on February 25, 1920, on a car at the Press street stockpen of the New Orleans & Northeastern Railroad Company in New Orleans to be switched to its connection with the- Texas- & Pacific Railway for shipment to Alexandria. It was carried over the lines of the New Orleans & Northeastern, Public Belt, and Trans-Mississippi Terminal Railroad Companies and delivered to the Texas & Pacific Railway Company.
This car was defective, having the clip or hasp on the bottom of the door broken, állowing too much play between the door and the floor of the car. According to the testimony of Barchy, the door ought to fit tight. The condition of the car was observed by Glaser, the shipper and dealer from whom plaintiffs bought the animal, and also by Luckett, one of the plaintiffs, himself, who was present when the car was loaded.
' Both of these witnesses state that they cdlled the attention of Slim, an employee of the New Orleans & Northeastern Railroad Company,. to this condition, and he promised to fix it. Luckett says, further, that he asked Slim to furnish another car or fix that one and that Slim replied they did not have any other car but that he would fix it.
While in transit from the stockpen where it was loaded to the Texas & Pacific Railway the mule got its foot and leg between the car door and the floor of the car, and on arrival at the Texas & Pacific Railway its leg was caught between the door and floor so firmly that the door had to be opened to free the leg and a platform placed under the mule to' enable it to get up.
It is clear that the condition of the car was the proximate cause of the injury, and that it was negligence to place the mule in the car.
We think the court warranted in taking judicial notice of the fact that the director general was operating the New Orleans & Northeastern Railroad and that hid transportation of the mule began' not at the time he issued the bill of lading but at the time it was loaded at the New Orleans & Northeastern stockpen.
In view of the fact that Slim, with whom Gla,ser and Luckett seem to have dealt in the matter of the loading, promised to fix the.car, we hardly think Luckett guilty of contributory negligence in permitting the loading in the defective car.
The testimony convinces us that injury to the mule by reason of her leg being caught, as stated, was considerable. It is questionable whether it ultimately caused the death of the animal, but certainly the injury Was quite extensive according to the testimony even of defendant’s witnesses, and as shown by the fact that it was kept for about nine days before defendants considered it fit to continue its journey.
The testimony of Luckett shows that on arrival at Alexandria it was in such bad condition that in carrying it to" his barn the mule got down on the ground after going about 100- yards and had to be helped up, and that on the way to the barn they had to let it rest for ten minutes after each 100 yards or so. He further testifies that he placed her in the care of a ' veterinarian who treated her about a month; that the feed, extra attention and care of the mule cost about $40 or' $50, and the veterinarian’s charge $25. He also states that he did not use the mule at all because it was sick, and finally sold *437her at a loss and with a guarantee that if not all right he would make it good, which he did by refunding the purchase price.
Counsel for defendants question the truth of this testimony, claiming it was an afterthought; but we do not feel warranted in rejecting it as untrue. The mule seems to have been sold some time in April and no account is given if its condition or the care and treatment to which it was subjected between that time and August 4th, when it died.
Dr. Stiples, the veterinarian, testified that he treated the mule while in Luekett & Hunter’s possession for about thirty days; that he saw her every day and gave her medicine; and that he performed an autopsy, finding that the mule had an extremely enlarged heart, distended- to such an extent that the walls were about the thickness of a sheet of paper, and that the liver and kidneys were also enlarged, the lungs congested and the right chest wall showing an old clot.
He further says that the direct cause of death was the hypertrophied condition of the heart. He also says that excessive and continued fever would cause the condition that he found in the mule, and that the heart failure of which the mule died' could have been caused by the bruising and mashing received in transportation. Also that in his opinion it was caused by those bruises. On cross-examination he said that in his opinion the animal did not die from the wounded hind leg. In reply to questions by the court he stated that the postmortem showed there had been a tremendous blow on the right side because of the clot; that the pain and continued fever would cause the condition mentioned. That with a hypertrophied heart a mule might last for months, probably years, but with hypertrophied condition of liver and kidneys the extreme limit would be ninety days. That at the time he treated her he knew the heart was hypertrophied to a certain extent, but could not determine as to hypertrophy of liver and kidneys, and called that a state of depression; that he knew she was pretty sick, and that something was wrong with the liver but could not tell exactly what it was. He further stated that when he first saw the mule her right hind leg was wrapped up to the stifle joint with absorbent cotton and the bandage applied over it; that the wound showed that some antiseptic powder or' dry powder had been applied to the lacerated places, and that she was skinned all over at various places. Also that she was in bad shape; sore all over; and that after the external wounds healed up and especially that on the right hind leg, which was very sore and stiff, she moved around much better than when he had first seen her. Also that when he discharged her there was nothing radically wrong that he could put his fingers on; only general depression. That she ate' all right and seemed to .move around all right, but seemed depressed. He also said that at the time he discharged her the swelling was., not completely gone and that she moved her leg with a perceptible stiffness in it.
Luekett and Glaser both testify that the' mule, when originally shipped, was in good condition.
Even if the death of the mule was not due to the injury received in transit, we are satisfied that these injuries were considerable and that the judgment of the lower court allowing $150.00 does substantial justice between the parties.
Rehearing refused; but right reserved to the director general to apply for a sec-, ond rehearing if he claims that at the time the mule was loaded at the stockpen of the New Orleans & Northeastern Railroad he was not operating that railroad.