¶1delivered the opinion of the Court:
¶2This was an action by the appellant against the appellees to recover damages on account of disease alleged to have been communicated to appellant’s cattle, of which they died, by Texas or Cherokee cattle belonging to appellees, under the act of 1867, making it unlawful for any one to bring into this State, or own, or have in possession, any Texas or Cherokee cattle, and any person violating the provisions of the act liable to pay all damages accruing to any one by reason of such violation.
¶3One point of defense on the trial was, that Texas and Cherokee cattle of Fowler & Earl had the opportunity, and might have communicated the disease to plaintiff’s cattle; and the following instruction was given to the jury for the defendants :
“If the jury believe, from the evidence, that the cattle of defendants and the cattle called Fowler & Earl’s, would communicate disease to native cattle when they (the native cattle) came in contact with the cattle of defendants, and of Fowler & Earl; and if the jury believe, from the evidence, that the cattle of plaintiff took a disease of which they died, either from the Fowler & Earl, or from the cattle of the defendants, and if the jury further believe that the testimony is equally balanced as to which of said cattle, defendants’ or Fowler & Earl’s, the plaintiff’s cattle took the disease from, then the jury should find a verdict for the defendants.”
¶4There was evidence tending to show that the plaintiff’s cattle contracted their disease by ranging over ground the cattle of defendants and of Fowler & Earl had previously passed over; and the jury might have believed that both lots of cattle contributed to infect the plaintiff’s cattle with disease, without being able to say that either one lot was concerned in doing so more than the other; in which case, the instruction would seem to require them to find for the defendants, which would have been wrong. We think the instruction should, at least, have been modified so as to have been given to the jury only on the hypothesis, that the disease was communicated by the cattle of the one party solely, and not by the cattle of both.
¶5For error in giving this instruction the judgment is reversed and the cause remanded.
¶6Judgment reversed.