Page:Federal Reporter, 1st Series, Volume 5.djvu/393

 IIAY V. 8TËAM-SHIP POWHATAH. 881 �.,The next question to be considered is whether th« condi- tion of the between-decks during Sunday was the cause of the sickness and mortality among the eattle in the between-decks. The mortality commenced on Sunday night and continued until Wednesday, and it bas been proved on the part of the ship that the effects of overheating in eattle often appear some days after the beating. Therefore, inasmucb as tbere is no evidence tending to show the presence of disease among the eattle in question, and no claim on the part of the steamer that tbere was any otber cause of the sickness and mortality except the heated condition of the eattle on S;unday morning, the case in its present aspect must tum upon the question of fact, whether the eattle that were put in the between-decks were in an overbeated and exhausted condition when shipped. If sucb was tbeir condition, the fair inference would be that the subsequent sickness and mortality arose from that con- dition. If such was not their condition, the subsequent sickness and mortality must be attributed to the beat and sufiEocation of the between-decks during Sunday, tbere being no evidence of any other sufficient cause. Upon the question of fact tbus presented I am of the opinion that tbere was no beat or exhaustion of the eattle, when shipped, to cause sicknesB or account for the deaths in the between-decks. The eattle had been in the yard for a week or so while waiting for the steamer, and were well rested. Tbey were driven only a mile and a half on the day of shipment, and that early in the morning. They came to the steamer in two divisions. As to the first division, ail agree that the eattle composing it were in proper condition for shipment. As to the second division tbere is direct evidence that the eattle comprising it bad become overbeated and exhausted, and equally positive evidence that they were not in sucb condition. But the weigbt of evidence is with libellant. In the first place, the bill of lading, which was signed after ail the eattle were on board, makes no mention of anything wrong in the appearance of the eattle. If the eattle had been in the overbeated and exhausted condition described by the witnesses for the steamer, it would seem probable that some mention of the fact would have been ����