The hill of exceptions discloses that there was some testimony to the effect that the shipment was delivered to the initial carrier in good condition and that on arrival at Portland, Oregon, it was delivered by the defendant in had order. Prom the same source we learn that the defendant offered the depositions of sundry witnesses who handled the refrigerator-car in question from its arrival in Billings, Montana, to Portland ; that the car was sealed with the seals of another road; that ice and salt were supplied in the ice-boxes of the ear whenever needed while it was in the custody of the defendant and that it was properly handled and transported over the line of the defendant in the usual time and without unnecessary delay. It is said in the record that the plaintiff offered no evidence to rebut the testimony of the defendant and tendered nothing to prove how the car was handled from the time it left Concordia until it reached Portland. The defendant seasonably requested the three following instructions:
“If you find in this case that the defendant received the carload of poultry and butter and used reasonable diligence in re-icing the car and handling it through to its destination in Portland, and offered delivery of it in the same condition as when it was received at Billings, Montana, then the defendant has performed its full duty to the plaintiff and there can be no recovery against it in this case.”
*426 “It is alleged in the second amended complaint that the negligence of the defendant consisted in its failure to thoroughly ice the butter and poultry and otherwise properly care for the same while in transit. _ I charge you that the defendant railway company did not insure against natural decay of the produce shipped except such decay as would happen because of its failure to use reasonable diligence in re-icing and salting the car. If when this produce reached Portland it was in a worse condition than when it left Concordia, Kansas, because of its age, nature or quality or because it was unable to stand the summer weather under ordinary and reasonable car refrigeration, and you find that it had ordinary and reasonable car refrigeration, then there can be no recovery in the case against the defendant.”
“If you find in this case that the damaged condition of the butter or poultry was caused by the failure of the shipper at Concordia, Kansas, to properly prepare the same, or to properly load it in the car, or to properly ice or cool the car at the beginning of the journey, or if you find that the damaged condition of the poultry or butter was caused by the failure of the Chicago, Burlington and Quincy Railroad Company to ice or care for the car, and that the defendant Northern Pacific Railway Company used reasonable diligence in icing and handling the car from the time it received the car until it offered delivery, then there can be no recovery against the defendant Northern Pacific Railway Company in this case.”
•These were refused over the exception of the defendant and the court charged the jury on that branch of the case as follows:
“Tour first inquiry, gentlemen, will be what was the condition of the poultry and butter at the time it was shipped at Concordia, Kansas; and if you find from the evidence in this case that this butter and poultry was in good condition and properly packed for shipment at the initial point of shipment, which was Concordia, Kansas, and that when it arrived in the City*427 of Portland it was in a tainted and pntrid condition, then the presumption of law arises that it became tainted en route, and through the failure of the transporting company. The burden would rest upon the defendant, therefore, to show that the property if received in good condition, became tainted from some cause for which it was not responsible. And it would have to satisfy you in that case by a preponderance of the evidence that the tainted and putrid quality of those goods when they arrived in the City of Portland, if such you find it to be, was caused by something which it could not control, either by the act of the shipper or by some inherent quality of the goods themselves, which produced this putrefaction and taint. The burden of proof would likewise be upon the company to show that at the time the goods were transferred to it in the State of Montana, or at whatever point the transfer was made, that the goods were then in a putrid or tainted condition, because, as I have said, if it be found by you that the goods were in good condition when shipped, the presumption would run that they continued in that good condition at the time of transfer to this company. The company, however, might show that at the time they received the goods they were in a tainted or putrid condition, but the burden would rest upon the company to establish that condition by a preponderance of the evidence.”