Page:Federal Reporter, 1st Series, Volume 4.djvu/722

 708 FEDERAL BBPOBTEB. �the eompany is to be prepared to execute its contracta, both to carry passengers and to carry freight; it cannot excuse itself for a failure to do the one uppn the ground that it was bound to do the other, and that it was not able.to do both. Therefore, if there was nothing in the case except the faet of a delay of 24 hours at this station, and if you should find that thàt delay was the cause ôf the injury of which theplain- tiff complains, he would be entitled to recoyer. But it is incumbent upon the plaintiff to show by the preponderance of testimony that the damage to his stock was caused by that delay of 24 hours, and that is the next question for your con- sideratiofl.. You are to oonsider that question carefully upon th'e testimony that bas been submitted to you, and it is for you tp, decide whether, in the case of the horses that died, their death was caused by this delay; and, as to the others, whether their sickness and the damage tothem was the resuit of the same cause. In eonsidering this question you will look into the evidence which has been offered before you, tending to show that the injury might have resulted from some other cause; and if you find that it did resuit from other cause, or, in other words, if you do not find the evidence sufScient to show that it resulted from this delay, you cannot find a verdict for the plaintiff; as, fdr example, you must consider the con- dition of the stock when it was shipped at Kansas City, and its condition when it was shipped in Kentucky. If you find that there was anything the matter with the stock, or any of ii;, before it started from Louisville, that is a fact to be con- sidered, and upon the testimony it is for you to say whether this delay of 24 hours resulted in the death of the two horses, and in the sickness and injury of the others eomplained of. If you find that the delay was the cause of the injury to the stock, then your verdict will be for the plaintiff, unless you find for the defendant on some of the matters that are alleged by way of defence. �In eonsidering, however, the first question, (whether the damage resulted from this delay,) you are to consider not only the condition of the stock when it was shipped at Louis- ville, and when it was reshipped at Kansas City, but you are ����