Page:Federal Reporter, 1st Series, Volume 10.djvu/740

 728 FEDBBAL EEPORTER. �part of defendant's rider which, if true, would show an intentional fouling of plaintifs horse. �The defendant has given proof tending to show that his mare was in the lead well ahead of Wolverton when he fell, and that hia fall was occasioned either by collision with some other horse, or by his stum- bling, or some other inherent weakness. The proof ou the part of defendant tends to show that immediately after leaving the wire the Belle of Nelson and the horse Clan Alpine rushed to the front; that they became the leading horses in the race and were clear ahead, a length or more, of Nero and Wolverton at the first turn, and at the time when Wolverton fell, so that a collision between Wolverton and the Belle of Nelson, according to the testimony of the plaintifs wit- nesses, was impossible; the defendant's proof, as I have said, tending to show that the Belle of Nelson and Clan Alpine took the lead within a few jumps after leaving the wire, and that she could not have col- lided with Wolverton at the turn, as she had been ahead of him for quite a distance before they reaohed the turn. The defendant has also given proof tending to show that plaintiff's horse was badly rid- den ; that his rider was incompetent and did not understand the proper management of his horse, and that the horse was out of con- dition; that hehad stumbled in his exercises before the race, and was in such condition as to be liable to fall upon being pushed to his utmost in the second heat of a contest like this �You will see, therefore, that there is a oonflict of testimony here, which you must settle, as to whether this injury was occasioned by the fault of defendant's jockey. �It is for you to say which one of these witnesses you will believe, or where you will place credence ; not that you must necessarily conclude that either of these witnesses have sworn falsely, because you must see from the manner in which these witnesses have testified that it was very difficult to judge just exactly, at the critical moment when this horse fell, what horse was next to him, or what horse caused him to fall, or what did actually cause him to fall. �The whole matter seems to have occurred instantaneously, and wit- nesses of equal intelligence and equal credibility have given you dif- ferent versions of the way in which this accident occurred, and the manner in which the horse fell, and what horse was nearest to him. Some say the Belle of Nelson was ahead; some say she was clear ahead of him — more than a length ; and others say she was running with Wolverton's nose about at her saddle-girth, when her rider pulled her in ahead of him and thereby tripped him up. ��� �