
    ANIMALS — TRIAL.
    [Lorain (8th). Circuit Court,
    November, 1904.]
    Winch, Hale and Marvin, JJ.
    George W. Morton v. Robert Murry.
    1. Failure to Ask Instructions to Disregard Evidence Properly Admitted Waives Error.
    Failure of a defendant to ask the court to instruct the jury to disregard evidence, which was properly admitted as against a co-defendant who was subsequently dropped from the case, waives any error of the court in neglecting to so instruct the jury.
    2. To Recover Damages for Transporting Hogs Infected with Cholera Knowledge of Fact is Necessary to be Proven.
    An action under See. 11373 G. C. for damages sustained by reason of wrongful transportation of hogs infected by cholera, is founded on negligence in which the burden is on plaintiff to prove defendant knowingly transported hogs so affected.
   WINCH, J.

This was an action brought by the defendant in error against plaintiff in error for damages sustained by reason of the wrongful transportation of hogs infected with cholera, whereby defendant in error’s' hogs became infected and some of them died. There was a verdict and judgment for plaintiff below.

Three errors alleged are relied upon for the reversal of this judgment.

1. It is claimed that the verdict is not supported by the evidence. A careful reading of the evidence convinces us that the evidence fully sustains the verdict.

2. There were two defendants in the original action: Morton, plaintiff in error, who owned and transported the hogs, and Enauss, who owned the farm adjoining defendant in error’s to which the hogs were transported. During the trial of the case testimony was admitted as to the admissions of Enauss; these were properly admitted as against him, he being a defendant ; they were not admissible against Morton.

The court in its charge directed a verdiet in favor of Enauss and he was thereby let out of the case, and properly. But the court neglected to caution the jury as to the inadmissibility of Knauss’ admissions as against Morton. Had request to so charge been made, it would have been error to have refused it, but as no such request was made, although the court inquired of defendant’s counsel if further requests were desired, we are inclined to rule there was no error herein.

Certainly there was no error in the original admission of the evidence.

3. We think the charge fair and very favorable to defendant below. The construction given by the court of the statute, Sec. 4211-6 and 4211-7, R. S. (Secs. 11373 G. C.), was all that the defendants were entitled to.

The court held that the action was brought under the statute, and was founded upon the negligence of the defendant, and held that to recover under the statute the plaintiff must prove not only that the defendant transported hogs infected with cholera, whereby the same was communicated to plaintiff’s hogs to his damage, but that the plaintiff must show that the defendant knew his hogs were so infected at the time he transported them. We find no error in the charge.

Judgment affirmed.

Hale and Marvin, JJ., concur.  