MansEield. "J.
1. We have carefully examined all the evidence contained in this record, and our conclusion is that it admits of no theory on which we can hold it sufficient to support the verdict.
L When tuffiSeSu.1’1
The action was to recover damages alleged to have resulted from the negligance of the defendant in furnishing for the carriage of the plaintiffs’ cattle a car infected with the germs of Texas fever; and, both by their pleading and requests to charge, the plaintiffs assumed the burden of proving facts from which the jury could reasonably deduce the the following conclusions : First, that the car was infected ; second, that the defendant, at the time of furnishing it, knew or by reasonable diligence might have known its condition ; third, that the cattle contracted the fever in the car.
It is not contended that the car could have been infected otherwise than by hauling in it cattle capable.of communicating the disease ; and the only proof that cattle of any kind had ever been in the car before it was furnished to the plaintiffs consisted of the excrements found on the floor. These of themselves could only prove that the car had been used in carrying cattle of some kind and from some locality. But, according to the uncontradicted testimony of a veterinary surgeon given at the trial, the infection could not be imparted except by native southern cattle. If, therefore, the stock leaving the excrements were northern cattle, their carriage had not the slightest tendency to prove the infection of the car ; and as there was no evidence at all to show where they came from, the condition of the floor of the car at the time the plaintiff’s cattle were shipped could as well be attributed to the carriage of stock incapable of depositing- the germs of the fever as to the transportation of those having that capacity. The mere presence of the excrements did not therefore justify either of the three conclusions we have mentioned as necessary to warrant a finding for the plaintiffs. It is said, however, that the > cattle were not exposed to infection out of the car. If we concede this to be true, so far as the evidence discloses, the fact standing- alone would not warrant a finding- that the car was infected ; for it is entirely consistent with the hypothesis that the disease was contracted by some means that could not be ascertained from the proof. But there was evidence tending to show that the cattle were exposed to infection outside of the car. They were shipped at Auvergme, in Jackson county, only nine miles from Newport, at a time when the fever existed at the latter town, and they were carried by Newport in reaching Searcy in White county, the place to which they were shipped. It was further shown that White county lies within the region permanently infected by the fever, and that cattle brought there from Jackson and other counties had died of a disease similar to that with which the plaintiff’s stock were affected. As the latter reached Searcy, and were taken from the car in less than twenty-four hours after being- shipped, there is nothing in the time when the disease appeared among them to indicate the place at which it was contracted ; and, leaving Newport out of view as a possible source of infection, the evidence adduced cannot be said to establish more than that the fever was contracted either at Searcy or in the car before reaching that place. Conceding that such is the effect of the proof, a rule laid down by the Supreme Court of Massachusetts in Smith v. Bank is applicable to the case. It was there held that “ when the evidence tends equally to sustain either of two inconsistent prop- * * a verdict in favor of the party bound one of them “ ag-ainst the other is necessaositions, * to maintain' rily wrong.' 99 Mass. 605. See also Oliver v. State, 34 Ark. 638*
2. As the cause must be remanded for further proceedings, it is necessary to notice some of the questions arising in the course of the trial.
% as to ad-took entries,
In connection with other circumstances which were in evidence, the record produced by the witness, Hubbard, showing the movement of cars at Diaz station during the year 1889, would have tended to prove that Missouri, Pacific Car No. 6335, in which the plaintiffs’ stock were shipped, had not been recently used in the carriage of other cattle. The statement of Hubbard is not very explicit; but we take it to mean that the entries in the record are in the haudwriting of Clayton, the absent witness, and that they were made in the performance of his duties as agent of the company. If such was the nature of the entries, and they were contemporaneous with the facts recorded, and there was no reason to question their fairness, we think they were admissible on being properly authenticated. Mr. Greenleaf places the admissibility of such entries on the ground that they are part of the res gestae, and he treats them as original evidence which may be received independently of the testimony of the person making them. They must, however, be authenticated by his oath if he is living and his testimony can be procured. If he is dead, or is out of the jurisdiction of the court, or cannot be found, they may be admitted on proof of his hand-writing. 1 Greenleaf, Ev. secs. 115, 120; 1 Whart. Ev. secs. 238, 240, 250, 678, 683, 688; Welsh v. Barrett, 15 Mass. 380; Bartholomew v. Farwell, 41 Conn. 107; New Haven etc. Co. v. Goodwin, 42 Conn. 230; Price v. Earl of Torrington, 1 Smith’s Leading Cases, (8th ed.), 563, 575; Sneed v. State, 47 Ark. 180 and cases cited. But it is incumbent on the party offering entries of this kind, unauthenticated by the oath of the person who made them, to show, as a prerequisite to their admission, that such person cannot be produced as a witness ; and when he is living, some discretion must be allowed to the trial court in deciding whether proof offered as preliminary to the. introduction of the entries is sufficient to admit them as in case of the witness’ death. Sneed v. State, 47 Ark. 180, 185. The bill of exceptions does not inform us that the statement made by defendant’s counsel as to their inability to secure the testimony of Clayton was received as evidence; and if that statement be disregarded, it does not appear that it was error to exclude Clayton’s entries, with no proof before the court that he could not be found, except that Hubbard swore that his place of residence was unknown, without stating whether any effort had been made to ascertain it.
3 Adrais plroofof0rtties of railway.
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MansEield. "J.
1. We have carefully examined all the evidence contained in this record, and our conclusion is that it admits of no theory on which we can hold it sufficient to support the verdict.
L When tuffiSeSu.1’1
The action was to recover damages alleged to have resulted from the negligance of the defendant in furnishing for the carriage of the plaintiffs’ cattle a car infected with the germs of Texas fever; and, both by their pleading and requests to charge, the plaintiffs assumed the burden of proving facts from which the jury could reasonably deduce the the following conclusions : First, that the car was infected ; second, that the defendant, at the time of furnishing it, knew or by reasonable diligence might have known its condition ; third, that the cattle contracted the fever in the car.
It is not contended that the car could have been infected otherwise than by hauling in it cattle capable.of communicating the disease ; and the only proof that cattle of any kind had ever been in the car before it was furnished to the plaintiffs consisted of the excrements found on the floor. These of themselves could only prove that the car had been used in carrying cattle of some kind and from some locality. But, according to the uncontradicted testimony of a veterinary surgeon given at the trial, the infection could not be imparted except by native southern cattle. If, therefore, the stock leaving the excrements were northern cattle, their carriage had not the slightest tendency to prove the infection of the car ; and as there was no evidence at all to show where they came from, the condition of the floor of the car at the time the plaintiff’s cattle were shipped could as well be attributed to the carriage of stock incapable of depositing- the germs of the fever as to the transportation of those having that capacity. The mere presence of the excrements did not therefore justify either of the three conclusions we have mentioned as necessary to warrant a finding for the plaintiffs. It is said, however, that the > cattle were not exposed to infection out of the car. If we concede this to be true, so far as the evidence discloses, the fact standing- alone would not warrant a finding- that the car was infected ; for it is entirely consistent with the hypothesis that the disease was contracted by some means that could not be ascertained from the proof. But there was evidence tending to show that the cattle were exposed to infection outside of the car. They were shipped at Auvergme, in Jackson county, only nine miles from Newport, at a time when the fever existed at the latter town, and they were carried by Newport in reaching Searcy in White county, the place to which they were shipped. It was further shown that White county lies within the region permanently infected by the fever, and that cattle brought there from Jackson and other counties had died of a disease similar to that with which the plaintiff’s stock were affected. As the latter reached Searcy, and were taken from the car in less than twenty-four hours after being- shipped, there is nothing in the time when the disease appeared among them to indicate the place at which it was contracted ; and, leaving Newport out of view as a possible source of infection, the evidence adduced cannot be said to establish more than that the fever was contracted either at Searcy or in the car before reaching that place. Conceding that such is the effect of the proof, a rule laid down by the Supreme Court of Massachusetts in Smith v. Bank is applicable to the case. It was there held that “ when the evidence tends equally to sustain either of two inconsistent prop- * * a verdict in favor of the party bound one of them “ ag-ainst the other is necessaositions, * to maintain' rily wrong.' 99 Mass. 605. See also Oliver v. State, 34 Ark. 638*
2. As the cause must be remanded for further proceedings, it is necessary to notice some of the questions arising in the course of the trial.
% as to ad-took entries,
In connection with other circumstances which were in evidence, the record produced by the witness, Hubbard, showing the movement of cars at Diaz station during the year 1889, would have tended to prove that Missouri, Pacific Car No. 6335, in which the plaintiffs’ stock were shipped, had not been recently used in the carriage of other cattle. The statement of Hubbard is not very explicit; but we take it to mean that the entries in the record are in the haudwriting of Clayton, the absent witness, and that they were made in the performance of his duties as agent of the company. If such was the nature of the entries, and they were contemporaneous with the facts recorded, and there was no reason to question their fairness, we think they were admissible on being properly authenticated. Mr. Greenleaf places the admissibility of such entries on the ground that they are part of the res gestae, and he treats them as original evidence which may be received independently of the testimony of the person making them. They must, however, be authenticated by his oath if he is living and his testimony can be procured. If he is dead, or is out of the jurisdiction of the court, or cannot be found, they may be admitted on proof of his hand-writing. 1 Greenleaf, Ev. secs. 115, 120; 1 Whart. Ev. secs. 238, 240, 250, 678, 683, 688; Welsh v. Barrett, 15 Mass. 380; Bartholomew v. Farwell, 41 Conn. 107; New Haven etc. Co. v. Goodwin, 42 Conn. 230; Price v. Earl of Torrington, 1 Smith’s Leading Cases, (8th ed.), 563, 575; Sneed v. State, 47 Ark. 180 and cases cited. But it is incumbent on the party offering entries of this kind, unauthenticated by the oath of the person who made them, to show, as a prerequisite to their admission, that such person cannot be produced as a witness ; and when he is living, some discretion must be allowed to the trial court in deciding whether proof offered as preliminary to the. introduction of the entries is sufficient to admit them as in case of the witness’ death. Sneed v. State, 47 Ark. 180, 185. The bill of exceptions does not inform us that the statement made by defendant’s counsel as to their inability to secure the testimony of Clayton was received as evidence; and if that statement be disregarded, it does not appear that it was error to exclude Clayton’s entries, with no proof before the court that he could not be found, except that Hubbard swore that his place of residence was unknown, without stating whether any effort had been made to ascertain it.
3 Adrais plroofof0rtties of railway.
3. J. T. Flynn, the seperintendent of the Batesville & Brinkley Railway Company, testified that he instructed company’s agent at Newport to obtain a car from the defendant company in which to ship the cattle ; and that the car in which the shipment was made was delivered to the former company at Newport and carried by it to Auvergne where it was furnished to the shipper. But he did not know what information was given to the defendant in obtaining the order. He was then permitted to state that, in making requisition for cars, his company was obliged to give its connecting- carrier information of the use to be made of the car and of the place it was to be sent to. The admission of this statement was objected to by the defendant. If, as we suppose from the abstract, the witness was understood to refer to a rule observed by the connecting carriers in obtaining cars from each other, we think the statement was admissible as a circumstance tending in some degree to show that the defendant knew the purpose for which the car was required.
4. It is assigned as error in the second and third instructions given to the jury on the plaintiffs’ that they make the defendant liable upon a contract to which it was not a party; and the same objection is made to the court’s modification of the defendant’s thirteenth instruction. Although the defendant company was not a nominal party to the bill of lading, the contract of shipment contemplated its services in carrying the cattle the greater part of the distance from Auvergne to Searcy, and it not only furnished the car, but fixed the rate of compensation for the entire route. The contract was as much for the defendant’s benefit as for that of the Batesville & Brinkley road, and the plaintiffs could sue either of the carriers for a failure on its part to perform it. If then the defendant was guilty of the negligence charged in the complaint, it cannot escape liability for the wrong on the ground .that the bill of lading was not signed by its agent. The instructions objected to were to this effect, and correctly presented the cause to the jury on the issues made by the pleadings. Halliday v. Railway Company, 74 Mo. 159; 3 Am. & Eng. Enc. Law, p. 16f and note 9; Wallingford v. Railway Co. 2 S. E. Rep. 19; Hutchinson, Carriers, sec. 150; Packard v. Taylor, 35 Ark. 402. It follows also that the thirteenth instruction of the defendant, in its original form, was properly refused.
4 laawnty
5. Our attention is also called to the phraseology employed by the court in modifying the 13th instruction. This, it is said, was such as to permit the jury to return a verdict on their mere belief, whether it was based on the evidence or not. But the matter thus complained of was a mere verbal inaccuracy which would doubtless have been corrected on the suggestion of counsel.
s Astow_ LaVhaa4“racy
The court erred iu refusing to set aside the verdict on the ground we have indicated ; and for this the judgment is reversed.