184 N.W. 252 | S.D. | 1921
Plaintiff - employed a veterinary surgeon to vaccinate certain hogs for the prevention of hog cholera. The hogs were vaccinated with serum and virus manufactured 'by defendant. Immediately following the' vaccination a considerable number of the hogs contracted malignant edema and died. Plain
In his complaint plaintiff alleges:
“That- the said virus and serum» is an imminently dangerous and poisonous substance, and the defendant, by reason of the facts herein stated, owed a duty to the plaintiff to exercise the greatest of care in preparing the same and in hermetically sealing the bottles in which contained, and in all other respects to so handle the same as not to permit the same to become contaminated with poisonous substances, or permit its own chemical action to so change the substance as to. inflict injury to the animals for which it was so prepared and intended; * * * that the said virus and serum was not free from impurities, but, on the contrary, the said defendant so prepared the same as to permit the same to be or become impure and contaminated with the germs of tetanus or other foreign or injurious substances, by reason whereof 90 of the said shoats became infected from and by means of the injection of said virus and serum and died from the effects thereof, without any fault or neglig'ence on the part of this plaintiff, and notwithstanding that this plaintiff used and exercised due care in the' treatment and care of the said shoats after they 'became so infected and in attempting to save them from the effects of such infection.”
For the error in excluding the above testimony, a new trial must be awarded.
The judgment and order appealed from are reversed.