On October 27, 1953, Fred P. Rudy brought action against Chicago, Milwaukee, St. Paul Pacific Railroad Company to recover damages to 202 head of cattle allegedly infected with shipping fever while being transported by St. Louis-San Francisco Railway Company (referred to as the "Frisco") and the defendant. The plaintiff alleged that the cars furnished for the shipment were infected and unclean. Defendant denied the allegation.

On November 11, 1954, a verdict was rendered in which the jury found: (1) That the cars furnished were previously used for shipping livestock affected with or carrying the infection of hemorrhagic septicemia; (2) that the Frisco was negligent in failing to furnish cleaned and disinfected cars; (3) that the negligence was a cause of injury to plaintiff's stock; and (4) that plaintiff did not know the danger and probable consequences of the condition of the cars when he loaded his stock. On motions after verdict the trial court concluded that the evidence did not support the verdict and directed that judgment be entered dismissing the complaint. Judgment was not entered in accordance with the direction until August 29, 1957. Plaintiff then appealed.

Plaintiff's cattle were shipped from Springfield, Missouri, to Truesdell, Wisconsin. They were loaded on five cars at 6:30 p.m., October 31, 1952, and left Springfield on the Frisco's line later that evening. They reached Truesdell on defendant's line at about 3:10 a.m. November 3d, and were unloaded later that morning. The temperature at Truesdell at 7 a.m. was 28 degrees. The cattle had been unloaded to be fed and watered at 4:30 a.m. November 2d at Calumet City, Illinois, and reloaded at 1 p.m. that day.

Plaintiff had purchased the cattle (feeders, less than twenty months old) from a Mr. Sheppard, and he and Sheppard were present when the cattle were loaded. Sheppard had dealt in cattle for about forty years and handled from 5,000 to 15,000 head per year. He was familiar with symptoms of shipping fever. Both he and plaintiff testified that none of the cattle showed any symptoms of that illness at the time they were loaded. When the cattle were unloaded at Truesdell it was conceded that at least some were ill with shipping fever and there was testimony that they all were.

It was undisputed that the cars had not been cleaned and disinfected since the last previous shipment of livestock in them. They contained a bed of straw and manure, this mixture being between six and eight inches deep. Three bales of fresh straw were added to the bedding in each car.

Before the cattle were loaded, there was conversation among plaintiff, Sheppard, and Mr. Sidebottom, the Frisco's stockyard foreman, about the condition of the cars. It would have taken some time to clean and disinfect them and the departure of the cattle would have been delayed. The cleaning would have been done by stockyards employees, and plaintiff would have been charged for the service. There was testimony that Sidebottom suggested that the cars contained good footing in the condition they were and that Sheppard agreed; that plaintiff told them he didn't "know anything about it, it's just up to you." Plaintiff did order the additional straw.

Sheppard had bought the cattle from four, or possibly as many as six, farmers near Springfield. The farmers had trucked them to the stockyards, where they were placed in pens and then loaded on the cars. Sheppard's guess was that the maximum time any of the cattle were in the yards before being loaded was three hours.

Two veterinarians, one called by plaintiff and one by defendant, testified about shipping fever. One or both testified to the following effect: "Shipping fever" is a layman's term for pneumonia occurring when animals are shipped. "Hemorrhagic septicemia" refers to the same thing. The condition may be caused by one of several bacteria. The most common one is Pasteurella, which may be found dormant in the intestinal tract of healthy animals. Exposure may lower the animal's resistance and the organism would develop. The disease "can be transmitted in almost any conceivable way." It is dirt-borne. A chilling or overheating of an animal can have an effect. Under certain conditions the disease can be contracted on a farm, in trucks, in stockyards, or on a train. Cattle may come down with it even though shipped in a cleaned and disinfected car. In experimental cases, the onset has been from two to six hours. In natural cases it runs from two days up. It may take a week or a week and one half. Upon shipping, the disease usually shows itself in a very acute form.

Both veterinarians testified that if cars had been used for shipping cattle with this disease and were then used for healthy cattle without being cleaned and disinfected, the probability that the cattle in the second shipment would become ill would be increased. Neither was asked to say whether, considering the facts disclosed here, it was more probable that the disease was transmitted from diseased cattle by way of the old bedding than that it was contracted in some other way.

During the trial it was stipulated that plaintiff based his cause of action solely upon his claim that a regulation of the bureau of animal industry of the department of agriculture of the United States was violated. It provides that "cars . . . that have contained cattle . . . affected with, or carrying the infection of, any contagious, infectious, or communicable disease shall not be moved interstate for any purpose until the said cars . . . shall have been thoroughly cleaned and disinfected under bureau supervision in accordance with sections 5 and 6 of this regulation." 9 CFR, sec. 71.5.

Sidebottom testified that when a car bears a tag, affixed by a bureau inspector, stating that the car has contained a diseased animal, the car is cleaned, washed, and disinfected before further use, but that the cars furnished plaintiff did not bear such tags.

It was also stipulated that plaintiff's counsel had requested defendant's counsel to furnish the name and address of the consignee of the cattle last shipped in the cars in question and that defendant's counsel had later advised that he had requested the information but had not received it. Sidebottom testified that, to his knowledge, he did not have the names of the last previous consignees in his records. An employee of defendant testified that a waybill accompanies each shipment, and the progress of the shipment is recorded on it. After the shipment has been delivered, the waybill is sent to an office of the delivering carrier and retained in its files; and that all railroads follow the same practice. Four of the cars used in this shipment belonged to the Frisco.

The court instructed the jury in this regard, that "The nonproduction of evidence peculiarly within the knowledge of the defendant and its agents and not within the knowledge of, or available to, the plaintiff gives rise to a presumption that the evidence, if produced, would have been unfavorable to the defendant."

FAIRCHILD, J.

Plaintiff seeks reinstatement of the verdict and argues that it may be supported by any one of three propositions: (1) Proof of the first carrier's receipt of the animals in good condition and delivery by defendant in diseased condition established negligence unless defendant proved absence of negligence; (2) the evidence was such as to permit the jury to find, upon balancing the probabilities, that the plaintiff's cattle contracted their disease from bacteria in the cars left there by diseased cattle previously transported; (3) defendant's failure to produce records showing names of previous consignees of animals shipped in the same cars raised an inference which would support the verdict.

At the outset it should be noted that this action was brought in contemplation of the Carmack amendment to the Interstate Commerce Act, 49 USCA, sec. 20 (11), (12). Under its provisions damage caused by any carrier en route may be recovered from the delivering carrier (the defendant here) and the delivering carrier may recover, in turn, from the carrier on whose line the injury shall have been sustained.

It should also be noted that the plaintiff could not recover unless negligence were found to have occurred upon the part of one of the carriers. The cattle were shipped pursuant to a contract which provided in material part that, "Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the livestock herein described shall be liable for any loss thereof or damage thereto or delay caused by act of God, public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensities of the animal, . . ." Because of the existence of this provision and because the damage in question arose from the contraction by the animals of infectious disease, the carriers are not liable as insurers. Absolute liability was imposed upon the carrier where the cause of damage to an animal could not be determined and where no special contract was in effect in Laridaen v. Railway Express Agency (1951), 259 Wis. 178, 47 N.W.2d 727.

(1) Burden of Proof to Establish Lack of Negligence. The parties agree that there is a general rule that when a shipper has proved delivery of goods to a carrier in good condition and delivery by the carrier in damaged condition a prima facie case has been established and "it becomes incumbent on the carrier to prove that the loss arose from some cause, or under such circumstances, that he is not liable." 2 Jones, Commentaries on Evidence (2d ed.), p. 897, sec. 500. Defendant points out, however, that many courts recognize an exception to the general rule in cases where recovery is sought for sickness of livestock in transit. The reasons given for the exception are the likelihood that disease may be present, though undiscovered, at the time of shipment and that disease may result from climatic and other conditions which a carrier could not control and for which it would not be responsible. 9 Am. Jur., Carriers, p. 948, sec. 845; 13 C.J. S., Carriers, p. 555, sec. 254k (1); Vaughn v. St. Louis-San Francisco R. Co. (1929), 223 Mo. App. 732, 15 S.W.2d 901, 906; Bloecher Schaaf v. Pennsylvania R. Co. (1932), 162 Md. 463, 160 A. 281, 284.

(2) Preponderance of Probabilities. It is undisputed that the cars were not cleaned and disinfected. The Frisco had no duty under the regulation to clean and disinfect them unless they had previously contained livestock affected with or carrying the infection of contagious, infectious, or communicable disease. Plaintiff could offer no direct proof that the cars had contained such diseased or infection-carrying cattle, but asserts that the fact that plaintiff's cattle became ill with shipping fever, coupled with the possibility that it may have been transmitted from diseased or infection-carrying cattle previously contained in the cars and other facts in the record, created a preponderance of probabilities that the disease came from diseased or infection-carrying cattle previously contained in the cars. If the finding to that effect can be sustained, then the failure of the Frisco to clean and disinfect the cars would constitute causal negligence.

Plaintiff relies upon two Wisconsin cases: Vilter Mfg. Co. v. Industrial Comm. (1927), 192 Wis. 362, 212 N.W. 641, and Pfister Vogel L. Co. v. Industrial Comm. (1927), 194 Wis. 131, 215 N.W. 815. In the Vilter Case the court sustained a finding of the industrial commission that an employee contracted smallpox while performing repair work at an isolation hospital. The medical testimony was that it could not be stated as a certainty that he contracted smallpox while working at the hospital and that it was possible that he might have contracted it on streetcars, trains, or elsewhere, but that it was much more probable that he contracted it at the hospital than elsewhere. The court held that a finding to a reasonable certainty may be based upon evidence which shows only a preponderance of probabilities.

In the Pfister Vogel Case a tannery employee died because of infection of the liver by a germ which commonly produces a disease in cattle. The court sustained a finding of the commission that he contracted the disease in his employment. There was medical evidence that the germ might be imbedded in hides in the tannery and that it could pass from the hides to the hands of the man handling the hides and then into his mouth. The germ could also pass through the air and enter through the mouth or nose. All the physicians agreed that there was at least a possibility that the deceased was infected with the germ from hides handled in the tannery. The physicians called by the applicant testified that it was more probable that the disease was contracted in the tannery than anywhere else. This court said, page 135, that, "The inferences preponderate in favor of the finding that he was exposed to this germ in appellant's tannery. The preponderance of inferences is so great that the commission could say that it amounted to a reasonable certainty."

In our view the proof before us does not show that the probability of the transmission of the infection from the diseased or infected cattle previously occupying the cars was greater than the probability of other sources of infection. Neither of the experts was asked whether he had an opinion as to the more-probable source of infection under the circumstances. There was testimony that the infection can be transmitted "in any conceivable way" and it does not seem to us that the evidence gave the jury enough information about the disease so that it could reasonably consider it less probable that some of the cattle may have been infected on the farm from which they came and spread the infection to the rest; that all may have contracted the disease in the stockyards at Springfield, or when removed from the cars for watering; or that all the cattle may have acquired bacteria from various sources other than from the cattle previously contained in the cars and have come down with the illness because of weather conditions while in transit. Thus the fact essential to plaintiff's recovery was left in the realm of speculation.

(3) Failure to Produce Records. Plaintiff's counsel asked defendant's counsel well in advance of trial for the names and addresses of consignees of livestock previously shipped in the same cars. Defendant's counsel was unable to obtain this information. The names and addresses alone would not have established any important fact, but would have enabled plaintiff's counsel to inquire of the previous consignees whether any of the livestock received by them had suffered from shipping fever. Plaintiff's argument essentially is that the failure of defendant either to produce the previous consignees as witnesses at the trial or to give plaintiff their identity so that he could interview them gives rise to an inference sufficient to support a finding that had the consignees been located and given testimony they would have testified that the animals they received had had shipping fever.

Plaintiff relies upon a doctrine recently affirmed by this court in Feldstein v. Harrington (1958), 4 Wis.2d 380, 388, 90 N.W.2d 566. It was said, "The general rule is that the failure of a party to call a material witness within his control, or whom it would be more natural for such party to call than the opposing party, raises an inference against such party."

One of the elements involved is control. 1 Jones, Evidence (4th ed.), p. 51, sec. 21. We have no information as to the availability of the consignees as witnesses but plaintiff would doubtless point out that only the requested records could show their identity and location. So we next come to the question of possession and control of records which would show this information. Certainly it was proved that the waybills for the previous shipments would show the consignees. It was established, however, that the waybills would be in the possession of the railroad on whose line the previous shipments terminated and there is nothing to show that those shipments terminated at any point on the Frisco line. Presumably the cars may have returned empty to Springfield from a trip to a point on another line. Plaintiff suggests that the Frisco would have records of the consignees of at least four of the cars because they belonged to the Frisco. The evidence does not establish that such records are kept by the railroad owning the cars when the shipment has been to a point off its line. Assuming, however, that the Frisco does have the information, then the question would arise whether the relationship between the present defendant and the Frisco in this lawsuit would place the defendant in a position where the defendant's failure to produce the Frisco's records would be equivalent to defendant's failure to produce its own records. Even, however, if we were to make all the necessary assumptions favorable to plaintiff, we conclude that the resulting inference would not be sufficient to sustain the finding, standing alone, but could be treated only as corroborative of other legally sufficient evidence.

This inference "does not operate to relieve the adverse party of the obligation of establishing his case." 1 Jones, Evidence (4th ed.), p. 53, sec. 22; 2 Wigmore, Evidence (3d ed.), p. 179, sec. 290. The inference "is persuasive rather than probative." Stocker v. Boston M. R. R. (1930), 84 N.H. 377, 379, 151 A. 457, 458, 70 A.L.R. 1320, and cases cited in annotation at page 1326.

In the Feldstein Case above cited the plaintiff was attempting to use nonproduction by defendant of an available witness as persuasive material. It was there held to be error not to permit plaintiff to prove that he had been examined by a physician at the defendant's request so that comment could be made to the jury upon the failure of the defendant to call the physician as a witness.

By the Court. — Judgment affirmed.

MARTIN, C.J., took no part.