Page:Federal Reporter, 1st Series, Volume 4.djvu/723

 OSMSBÏ ». V. P. B. 00. ���709 ���to consîder the manner of the shipment that has been testified to before you — the fact that the horses were put in stalls, that they were crosswise of the car, and that there were 12 of them on the car, and you are to judge whether that mailner of shipment would or would not have resulted in this sicknesa and death and injury of the horses, independently of the delày of 24 hours at Brookville. If you conclude that under ail the circumstances the horses would have coma through safely, and none of them died, and none of them suffered injury but for that delay, then the plaintiff has made out a, prima facie case. But if you conclude that even if the horses hàd not been stopped at Brookville these two would have died, and the others would have been injured and sick, just as they were, then the plaintiff has not made a case, and that is the end of it. But, if upon these questions you find for the plaintiff, you will proceed to consider some of the matters alleged by way of defence; and the only matter that I think I need call your attention to as requiring your consideration, is the allega- tion of negligence on the part of the plaintiff himself. I say to you, as matter of law, that if the plaintiff was negligent, and if his negligence materially contributed to the injury which he has sustained, then he cannot recover. And in con- sidering this question you will look into the evidence upon the points that I have already called your attention to. As, for example, you will inquire whether it was negligence in him to ship horses in the manner in which he shipped; whether he acted with reasonable and ordinary prudence in that respect, and, if he did not, whether that negligence mate- rially contributed to the results that foUowed. You will con- sider whether it was negligence in him to ship the horses in the condition they were in when they left Kansas Cit}^; whether prudence required him to delay there, and, under ail the circumstances, whether he was negligent in that respect. It is also aUeged that he had the option of unloading the horses at Brookville, and that he neglected to avail himself of it. Upon this question there is a eonfliet of testimony. It is for you to decide what the facts are. If he knew that his train was to remain at Brookville a number of hours, o.^ a day, ����