Brown & Co. v. Bennett

Kirby, J., (after stating the facts). (1) The court properly instructed the jury that the plaintiff would not be entitled to recover unless they found from a preponderance of the testimony that defendants knew or had notice of such facts as would make them chargeable with knowledge that their mules were infected with the disease while they were kept in the plaintiff’s barn and liable to communicate it to other stock. Railway Company v. Goolsby, 58 Ark. 401; Railway Company v. Henderson, 57 Ark. 402. (2) We do not think the court erred in giving instruction. numbered 5 complained of, since Parker the driver of appellants’ mules, engaged in their service, was charged with the duty of looking after and taking care of them and being their agent his knowledge of the condition of the mules was their own. There was testimony sufficient to show that the mules were infected with distemper at the time they were kept in the bam and that it was an infectious disease, known to be so and liable to be communicated to other stock and that the horses of appellee took distemper after being stabled in the barn where the mules were kept without having been informed by appellants of the fact that their mules had been infected with the disease while kept therein. From the testimony relative to the value of the animals, and the damage thereto, the jury could have found for a larger amount than they did, and the testimony of an offer from a particular individual of a certain price for one of the animals that died, if it was incompetent as contended by appellant was not prejudicial, since the jury fixed the value at a much less amount in rendering their verdict. We do not think any of the instructions are open to the objections that they assumed facts not proved, or permitted the jury.to find the value of and damage to the animals without regard to the testimony. The case appears to have been submitted to the jury upon instructions properly defining the issues and the testimony is sufficient to support the verdict. We find no prejudicial error in the record and the judgment is affirmed.