22 Wis. 511 | Wis. | 1868
¥e think the question asked the witness Bartlett, as to which was the better ear for shipping cattle in,
We think the defendant was entitled to have the first instruction given to the jury in terms as asked. That instruction was: “It appears from the contract for the transportation of the cattle, made between the plaintiffs and defendant, that the cattle were to be fed and taken care of by the owners, the plaintiffs in this action; and if you find from the evidence that the plaintiffs neglected this part of the contract, and such neglect contributed to the injury of the cattle, then the plaintiffs are guilty of such negligence on their part as will bar them from recovering in this action.” The court gave the instruction with the qualification, “ unless the jury find that the defendant waived that part of the agreement.” There can be no doubt that by the contract the plaintiffs were to take care of the cattle on the road during their transportation. Eor one clause of the contract is in the following words: “ When live stock
We do not deem it necessary to notice the other points discussed in the brief of the counsel fo.r the company. The errors already noticed are sufficient to reverse the judgment, and on a new trial the proofs may show a different state of facts.
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.