ON REHEARING.
SOMERVILLE, J.(5) On the original hearing we held that defendant had overcome the presumption that the missing case of goods came into its possession as carrier; this because defendant’s checking clerk at Birmingham testified to that effect. Upon a careful consideration of his entire testimony, however, it appears that he did not know the fact stated, since he did not see the seal clerk break the car seal, and did not know how long it had been broken before he checked the contents of the car and discovered that a case was missing; thus leaving an interim during which so far as appears, the case may very well have been abstracted from the car while in defendant’s custody at Birmingham. Such an inference we now think it was within the province of the'jury to draw, and we are impelled therefore to' hold that the affirmative charge for defendant as to liability for this case, was properly refused.
(6) While we still hold that the admission of the declaration of the depot agent at Hartselle was technically erroneous, yet we *25are convinced that its admission could not and did not influence the jury in arriving at their verdict, and we will not reverse the judgment for that insignificant error.
It results that the application must be granted, and the judgment of reversal set aside, and the judgment appealed from will be now affirmed.
Affirmed.