Opinion by

The question at issue in this ease was a question of pure fact, to wit, negligence of the defendant in caring for the plaintiff’s goods while in their custody. The principal facts of the case are not in controversy. That is, the fact that the plaintiff did deliver to the defendant a large quantity of chickens and squabs in September, 1893, for preservation by means of cold storage, and the fact that when these goods were removed in the early part of the year 1894, a very considerable part of them was seriously injured by mould and decay, are well established by ample testimony which is not contradicted. Whether the defective condition of the goods was due to the negligence of the defendant in their preservation, was the sharply contested question before the jury, which it was necessarily their proper function to decide. If there was no evidence of negligence more than a scintilla, of course, there was nothing for the jury to consider, and it would be error to submit the question of negligence to be disposed of by them. The learned judge of the *330court below, in answer to the eleventh point of the defendant, distinctly charged that negligence on the part of the defendant could not be assumed from the mere fact that the goods of the plaintiff were injured, and that negligent acts or omissions causing injury must be affirmatively proved. The court also charged, in answer to the defendant’s sixth point, that if the injury to the plaintiff’s squabs and chickens arose from any other cause than the negligence of the defendant, no matter what the cause might .be, the defendant was not responsible. In affirming the point he also instructed the jury that if they believed that the goods stored by the plaintiff became mouldy and decayed, and that such condition might have resulted either from the goods not being fresh when originally packed, or being originally improperly packed, or being frozen too slowly while in the custody of another warehouseman, or by removal from another warehouse to the warehouse of the defendant, then the testimony of the plaintiff that there was dampness in the defendant’s room is not sufficient to charge the defendant with negligence, and their verdict must be for the defendant. In answer to the defendant’s seventh point the court further charged that the fact that the plaintiff’s goods were of a delicate and perishable nature, and were liable to spoil without any negligence on the part of the defendant, must be taken into consideration by the jury as relieving, or tending to relieve, the defendants from the charge that the goods were decayed through the negligence of the defendant.

In stating to the jury precisely what was the question for them to consider the learned judge said that “ the real question —that is the primary question — is whether or not the defendant was negligent in the care of the poultry and squabs which the plaintiff put into its custody.” And in the general charge the. court further said that the defendant company could not be regarded as guarantors that the articles deposited with it should come out perfectly sound. “ They do not guaranty against the operation of natural causes. If either vegetables, or fruit, or meat, or poultry, put in such storage house, notwithstanding they are kept in a sufficiently cold atmosphere, decay, the storage company is not responsible for that. They expressly exclude that ground of liability in their contracts, just as they do leakage, by which I do not mean leakage from pipes, but from receptacles which are put there for storage, containing articles *331of whatever kind they may be.” The court further charged that if the injury which subsequently accrued to the squabs and chickens resulted from the condition in which they were when deposited the defendant was not responsible, nor would it be if the goods were kept too long before they were stored, or if they were stored in an improper manner before they were delivered to the defendant, or if the injury resulted from any cause inherent in the articles themselves, and not produced by any thing which the defendant did, or omitted to do, in all these contingencies the defendant was not liable. And the learned judge further told the jury that if, after full consideration, they could not satisfactorily determine the question whether the loss and injury resulted from the acts or omissions of the defendant, then, also, they should find in favor of the defendant.

It seems to us that the charge was, in an eminent degree, fair, impartial, and conservative of every right which the defendant could assert. It committed nothing to the jury but the one bare question whether the loss and injury suffered by the plaintiff was occasioned exclusively by the acts or omissions of the defendant while the articles were in its care and custody. That question was necessarily for the jury, and the court could not have affirmed the second, fourth and fifth points of the defendant, because they all contained requests for binding instructions to the jury to find for the defendant.

The only remaining question to consider, is, whether there was evidence more than a scintilla, tending to establish the allegation of negligence against the defendant. Having read the testimony with much care, and having reference to the very subject, we are constrained to say that in our opinion there was an abundance of such testimony in the cause. Without stopping to repeat it in detail, it is only necesssary to say that in the testimony of Leidy, Yan Ostrand, Drohan, Humphrey, Bergey, Lauter, Kitchen and Thompson, all of them examined for the plaintiff, may be found plentiful items of evidence, some on one subject and some on others, which are material, pertinent and convincing in a greater or less degree, illustrative of the very essential point of controversy.

Some of these witnesses describe the condition of the chickens and squabs when they were put in storage with Crowell & Class, some testify to their condition when taken out and removed to *332the defendant’s storage, others to the condition in respect to dampness and moisture observed in the defendant’s rooms, others, to the condition of the goods when taken out and shipped to New York. On the crucial question as to the condition of the room, Bergey was asked, “ Q. What was the condition of the room when you were doing that sorting ? A. That day the dripping trough was wet, and the pipes were damp and rusty like in the center of the room. ... I called Mr. Story’s attention to it. The trough was wet; the pipes were also damp and, I think, some of them had no snow on at all. ... Q. The troughs were wet? A. Yes, sir; and even that floor; it was also wet at that time.” Lauter after describing the condition of the stock as being mouldy and some of it rotten, was asked, “ Q. Did you see the room when you were doing that? A. Yes, sir; we also examined the room. Q. What was the condition of the room ? A. The pipes were damp — not the pipes, but the trough was damp and the pipes were dripping. Mr. Bergey told me to look at that and I did so.”

It was abundantly proved that moisture would form mould, and mould would cause rot. The condition of mould and decay of the chickens and squabs when taken out was proved by a mass of testimony which was really not contradicted. A number of witnesses proved the good condition of the stock when it was. put into the storage, and the whole subject was fully developed in a large amount of testimony from which the jury could fairly infer all the conditions of the defendant’s liability.

There was, of course, some conflicting testimony on the part of the defendant, all of which was for the consideration of the jury, but of which we can take no cognizance. We do not think that it was necessary to prove some specific act of negligence which produced the dampness or moisture. The fact that, being present, they tend to cause mould is itself evidence of negligence in permitting such conditions. We see no error in the charge or answers on the subject of damages. The right to recover was limited to the actual loss sustained. The defendant’s ninth point relating to loss sustained after suit brought was affirmed with an explanation which it seems to us was entirely correct. We are quite clear that there was no error in the matter complained of in the fourth, sixth, seventh and eighth assignments, and, of course, as the case had to go to the *333jury the ninth and tenth assignments cannot be sustained. The other assignments have already been eoveréd. The discussions of the testimony contained in the argument of the learned counsel for the appellant are well and forcibly presented, but they pertain to the function of the jury, and it would not be practicable for this court to act upon them.

Judgment affirmed.