delivered the opinion of the court.

The affidavit for a continuance filed by the appellant recited that it expected to prove by certain witnesses, whose depositions had been delayed, that the identical machine forming the basis of this litigation was at that date in the possession of the agent *369of the Memphis, Kansas & Texas Railway Company at Caddo, Indian Territory, to which place it was shipped (from Eupora on December 21, 1901), and that it arrived there on January 18, 1902; further, that said machine was received at Memphis, Tenn., in December, 1901, and by the agent of the Southern Railway Company “turned over to the Choctaw, Oklahoma & Gulf Railroad in good condition, and without unreasonable delay, for shipment to Caddo, Indian Territory.” The record recites that “the plaintiff admitted that the witness mentioned in said affidavit would testify as recited in said affidavit, and agreed that said affidavit might be read in the trial as if the testimony was produced in open court.”

It is conceded that, if the appellant transported the machine and delivered the same to its connecting carrier without unreasonable delay and in good condition, its responsibility for the shipment ceased, so far as this suit is concerned, with said delivery. This is expressly recognized by the instruction granted for appellee, which predicates recovery solely upon the theory that the railroad company negligently failed to deliver the machine to its connecting carrier. The same legal proposition is correctly stated in the instruction granted to appellant. But in the face of the express and uncontradicted admission as to the prompt transportation and delivery in good order by appellant, there was no conflict of testimony as to the vital point in the case, no proof of any negligence on the part of the appellant, and consequently nothing on which to base an instruction. Wherefore it was error to refuse the peremptory instruction asked by the appellant.

Reversed and remanded.