Bedford v. Louisville, New Orleans & Texas R. R. Co.

• Decision Date: 16 April 1888
• Citation: 4 So. 121,65 Miss. 385
• Parties: T. C. BEDFORD v. LOUISVILLE, NEW ORLEANS & TEXAS R. R. CO
• Court: Mississippi Supreme Court

4 So. 121

65 Miss. 385

T. C. BEDFORD v. LOUISVILLE, NEW ORLEANS & TEXAS R. R. CO

Supreme Court of Mississippi

April 16, 1888

APPEAL from the Circuit Court of Warren County, HON. RALPH NORTH Judge.

This is an action for damages brought by T. C. Bedford against the Louisville, New Orleans & Texas Railroad Company. The declaration alleges that defendant by carelessness and negligence in running its trains killed two mares and a colt on Feb. 27, 1887, and injured a gray mare, on March 3, 1887 all the property of plaintiff.

On the trial the plaintiff introduced evidence to show that the several animals were killed or injured by contact with the running trains of defendant, and rested. The defendant then introduced evidence (the testimony of the engineer) to the effect that the night on which the two mares and colt were killed was foggy and dark; that the headlight only lighted about twenty five yards ahead; that the train was running at between forty and fifty miles per hour; that the animals were killed "just beyond a curve;" that the animals were not seen by the engineer until the train "was right on them," and that the engineer had no time to give an alarm or stop his train before they were struck. The defendant's engineer also testified that the night on which the gray mare was killed was a clear starlight night that he saw the gray mare about thirty or forty yards ahead and about forty feet from the track, running as if to cross; that he blew the stock whistle, but the train, which was running at about thirty-five miles per hour, did not perceptibly check up; that it would have been impossible to stop the train before striking the animal.

Thereupon the court instructed the jury to find for the defendant, which was done, and there was judgment accordingly. The plaintiff appealed.

Judgment affirmed in part and reversed in part.

Shelton & Crutcher, for the appellant.

1. The evidence introduced by the defendant was wholly insufficient to rebut the prima facie case under Sec. 1059, Code of 1880, or at most there was a doubt and the question should have been left to the jury.

2. In all cases of this class the plaintiff has made out his case the moment he proves the killing by the railroad, so that an instruction then to find for the defendant would be erroneous. It can never be proper to grant this instruction where the plaintiff has made out his case and the defendant must introduce...