
    John Mackin, Appellee, v. Minneapolis & St. Louis Railroad Company, Appellant.
    1 APPEAL AND ERROR: Questions of Pact — Conflict of Evidence— Bindings of Jury — Conclusiveness. A finding of tfie jury on a fair conflict of evidence is conclusive on appeal.
    2 CARRIERS: Carriage of Live Stock — Diligence—Evidence. Evidence reviewed, and field sufficient to carry to tfie jury tfie question of tfie diligence of a carrier in transporting live stock.
    3 CARRIERS: Carriage of Live Stock — Diligence—Burden of Proof. Burden of proof is .on carrier to show tfiat live stock was transported witt reasonable dispatcfi, even in cases wfiere tfie sfiipper accompanies tfie shipment. (See. 2116, Code Supp., 1913.)
    
      Appeal from-Marshall District Court. — B. F. Cummings, Judge.
    Friday, May 5, 1916.
    Action at law to recover damages for failure to transport two carloads of hogs from St. Anthony to Marshalltown, Iowa, on day named. There was a jury trial. Plaintiff claimed $138.91, but, because of a failure of proof as to some items, the recovery was but $104.95. Defendant appeals.
    
    Affirmed.
    
      C. H. E. Boardman, W. H. Bremner and F. M. Minery for appellant.
    
      Bradford <& Johnson, for appellee.
   Preston, J.

1. St. Anthony is in Marshall County, northwest of Marshalltown. The evidence shows, or the jury could have found, that plaintiff was a stock shipper at St. Anthony, and, on January 12, 1912, two cars had been furnished him to ship hogs to Marshalltown, Iowa; that he loaded one car of hogs and had the others in the yard to load into. the other car, but could not pinch the car up because of snow on the rail, and only waited to so load until the appellant’s engine came along and would take the car up to the chute to load; that, after loading one car, plaintiff went to the depot and billed the two cars and issued to appellant bills of lading; that, before loading, he talked with appellant’s agent, who told him to get all the hogs in now, as an extra train was coming, and he would get rid of them before another storm. It is contended by appellee, and we think the evidence was sufficient to authorize the jury to find, that it would not have been necessary to feed the hogs, and none of them would have died, nor would there have been any damages, if they had been taken to Marshalltown by the extra, as agreed by appellant’s agent. Plaintiff got the hogs in and loaded one car and was ready to load another. The conductor of the extra said he could take the car if he had an order; that he had plenty of power and plenty of steam. The telegraph instruments were working all the time until it is claimed that defendant took the stock.

The train left Story City, west of St. Anthony, at 7:00 A. M., and got to Marshalltown at 11:00 A. M. The train leaving Story City on the 12th got to Marshalltown two or three hours late. It is claimed by appellee that the so-called snow blockade was northwest of St. Anthony and there was no such blockade between St. Anthony and Marshalltown. One carload of the hogs was kept on the ear, and the other in defendant’s stockyards.

There is a conflict in the testimony as to a certain conversation between plaintiff and the station agent, but this left it a question for the jury. Under the pleadings, issues of law were those involving admission and exclusion of evidence, liability of a common carrier for delay occasioned by unprecedented storms as an act of God, what constitutes delivery to a common carrier, and whether the plaintiff may sue.

The assignments of error relate to these matters. It is conceded by appellant that the issues of fact involve the question of weather conditions, delivery to the carrier as such, amount of damage and loss suffered, and . ownership of the hogs. As there was a con-flict in the testimony as to these disputed . . questions of fact, such questions were for the jury, and the evidence is sufficient to sustain the findings. The principal defense in the lower court seems to have been as to whether there was such a snow storm as to constitute, under the circumstances, an act of God, and to excuse the defendant. The evidence was directed largely to this point. Some of the evidence has been referred to, but we shall not set it out more fully. The instruction of the court on this subject, of which no complaint is made, is substantially that 'a snow storm of such violence, or a state of weather of such a condition, as would prevent the reasonable and safe moving of trains is an act of God.

Our conclusion is that the evidence is such that it was for the jury to say whether defendant exercised reasonable diligence in transporting the hogs. Where ,, , . . the company accepts live stock tor shipment, . • it is its duty to transport the same with all reasonable dispatch to the point of destination.

2. The appellee accompanied the stock, and it is contended by appellant that the carrier does not have the. burden of proof where the stock is so accompanied by the owner. It is contended by appellant that the common law placed the burden of proof on the carrier ... .... as to matters which were peculiarly within the r j knowledge of the carrier, and that this rule was qualified where the reason for its application fails, as where the shipper or his agent accompanies the shipment. In reply to this, appellant cites Sec. 2116, Code Supp., 1913. The addition to this section is as follows:

“In any suit or action in court brought against a railroad corporation for the purpose of enforcing rights arising under the provisions of this section, the burden of proving that the provisions of this section have been, complied with by such railroad corporation shall be upon such railroad corporation. ’1

The statute makes no exception in cases where the owner accompanies the stock.

One or two other minor matters are discussed briefly, but they are not of controlling importance. We are of opinion that there is no prejudicial error, and the judgment is, therefore, — Affirmed.

Evans, C. J., Dee'mer and Weaver, JJ., concur.  