delivered the opinion of the court.

It was error to give the second instruction for the appellee, for the reason that there was no evidence making it applicable to the case made by the testimony. Counsel for appellee say that the agent Buckley’s testimony made it proper. Buckley [station agent at Pearson] did say he “had a message from W. W. Bond [superintendent of railway company] telling us not to receive”—but before he finished the sentence he was stopped by objection to the testimony, and the objection was sustained and' this fragmentary statement excluded. It was not, therefore, before the jury. The telegram from Todd [city physician], sent at 6 o’clock on the evening of the thirteenth of September to Bond, when taken in connection with Bond’s answer and what was done by him next day, shows that telegram to have related to passengers. It was sent by Todd because Bond would not agree not to stop the eastbound passenger trains from Vicksburg at Edwards, where the yellow fever was raging. All the testimony shows this. The information Chapman [station agent at Jackson] gave Buckley was not derived from Bond, and was not given till the sixteenth, .after the cotton had been received for transportation. Bond should certainly have been allowed a reasonable time, in view of the violent panic and the great excitement and confusion, within which to have ascertained whether it was the purpose also to *542stop freight trains from Pearson to Jackson, west bound, and to then notify agents accordingly. Under all the circumstances, this charge ignored that right. The abstract doctrine that, if the carrier received the goods for shipment when it knew it could not ship them, and that it gave no notice to consignor or consignee, and damage resulted solely therefrom, the carrier is liable, is correct enough. But this instruction only announces a part of the rule. It does not count on any failure to notify consignor or consignee, but counts alone upon the failure of the company to reject the cotton if it knew" it would not be shipped, and that too in the absence of satisfactory proof that the company did so know at the time it received the cotton.

The next question is whether the giving of the instruction is reversible error. And we think it must be so held, in view of the closeness of the case oh the evidence, as to liability under all the circumstances. If this instruction had not been given, and the verdict had been the same, we would not disturb it, since there is evidence which would have warranted the jury in finding the cotton might have been shipped in on the morning of the sixteenth or seventeenth at least. Wharton.’s testimony and Ewing’s show this. But, with the case so doubtfully balanced on the main issue, we cannot confidently say that this instruction did not produce the result arrived at by the verdict.

Reversed and remanded.