1. The action being for the value of a horse alleged to have been killed by hard driving and improper usage on the part of an employee of the defendant to whom the animal had been hired, the declaration of this employee, made on the road while returning from his journey, after the horse had become sick, that he, the employee, had just discovered this fact, if admissible in evidence at all, was, in the absence of any testimony as to how he had previously used or treated the animal, of no material weight or importance, and its rejection was not cause for a new trial.
2. In view of the judge’s explanatory note, the charge complained of, even if erroneous, could have resulted in no injury to the defendant.
3. The evidence for the'plaintiffs made out a prima facie case; and while that introduced in behalf of the defendant might have warranted inferences which would have authorized a verdict for the defendant, yet as it failed to introduce as a witness the employee above mentioned, or to account for his absence, and it is manifest that he alone knew the real truth of the case as to how the animal had been used or treated before becoming sick, this court will not disturb the judgment of the trial court refusing to set the verdict aside. Judgment affirmed.
*8171. Error in refusing to allow Winkle to-testify, as part of the res gestee: “When I got to where Dempsey was, he said he had just discovered that the horse was sick.”
2. Error in charging, that the jury should weigh all the evidence and see upon which side the preponderance was, and find their verdict as they might find the preponderance; without modifying this by an instruction that if the testimony was evenly balanced, the verdict should be for the defendant. In a note the judge certifies, that he had previously charged that the burden was -on plaintiffs to make out a prima facie case; but that if -the jury believed this had been done, the burden would *818be shifted to defendant, and it would then be for the jury to weigh all the evidence and determine in whose favor the preponderance was.
3. Verdict contrary to law and evidence.
Fouché & Fouohé, for plaintiff in error.
Beece & Denny, contra.