Page:Federal Reporter, 1st Series, Volume 10.djvu/741

 m'kAY V. IRVINK. 729 �These witnesses testify from varioas positions. You must deter- mine from the intelligence of the witnesses, from their apparent candor and fainiess, and from their opportunities of observation, where the truth lies in this case. �The plaintiff has the bnrden of proof. He is bound to satisfy you by a preponderance of testimony that the accident in this case was occasioned by the fault of the defendant' s jockey. If you cannot say, from the testimony in the case when it is all considered together, that it was the fault of this defendant's jockey, then the defendant is not liable. The plaintiff is bound to satisfy you, not only that his horse fell, but that it was cansed by this defendant's act or the act of his jockey, and that it was a wilful or intentional act on the part of the jockey, or so grossly negligent as to amount to incompetency on his part. If the proof does not satisfy you that this horse was killed by the act of the defendant's jockey, or by the gross incompetency and negligence of the defendant's jockey; or if you find from the proof that the death of plaintiflf's horse was caused by his being out of condition, or his stumbling, or the negligence or incompetency of plaintiff 's jockey, — then the defendant will be entitled to a verdict at your hands ; but if you find from the proof that the horse was killed, as charfred, by the foui riding of the defendant's jockey, then it will bo your duty to find a verdict for the plaintiff, and, in case you do, it will also be your duty to fix the damages which the plaintiff has Kustained by the loss of his horse; and in doing so the damages must be estimated at what is shown by the proof to have been the value of the horse. The proof tends to show that this was a thoroughbred horse, bred in England and imported into this country only a few week s prior to this race. The plaintiff alleges that the pedigree of his horse shows a high degree of excellence of blood, but the pedigree is not before j'ou ; therc is, however, testimony of not only the plain- tiff himself, but of experts who saw the horse and who claim, from experience, to be able to judge whether a horse is or is not thorough- bred, that he was a thoroughbred horse. �From the testimony in the case you are to say, if you find the defendant guilty, what was the value of the horse; because the meas- ure of plaintiff's damages is the value of the horse, it being conceded that the loss was total. ��� �