Columbus & G. Ry. Co. v. Dunlap, 30319

CourtMississippi Supreme Court
Writing for the CourtAnderson, J.
Citation145 So. 646,164 Miss. 709
PartiesCOLUMBUS & G. RY. CO. v. DUNLAP
Docket Number30319
Decision Date30 January 1933

145 So. 646

164 Miss. 709

COLUMBUS & G. RY. CO.
v.
DUNLAP

No. 30319

Supreme Court of Mississippi

January 30, 1933


Division B

1. RAILROADS. Instruction on railroad's prima facie negligence held error under evidence where testimony was conflicting as to which train struck cow (Code 1930, section 1580).

[164 Miss. 710]

The instruction on the statute making proof of injury inflicted by running of train prima facie evidence of negligence was misleading, since plaintiff claimed that cow was struck by afternoon steam train, while defendant's theory was that cow was struck by morning train, and defendant introduced evidence showing that the killing of the cow by the morning train was unavoidable. The court instructed that jury should find for defendant if cow was killed by the morning train, but jury may have thought statute was applicable in case of doubt as to which train killed the cow.

2. RAILROADS.

In railroad accident case, court should direct verdict according to which train killed cow, where railroad's negligence in operation of one train was disproved (Code 1930, section 1580).

HON. JNO. F. ALLEN, Judge.

APPEAL from circuit court of Montgomery county, HON. JNO. F. ALLEN, Judge.

Action by J. W. Dunlap against the Columbus & Greenville Railway Company. Plaintiff recovered judgment in justice court and in the circuit court on appeal, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Gardner, Odom & Gardner, of Greenwood, for appellant.

The testimony being conflicting, should, of course, have been submitted to the jury, without any instructions as to the prima facie statute.

Adams-Newell Lumber Company v. Jones, 162 Miss. 517.

In action for injury by railroad engine, where circumstances of injury are shown by plaintiff's evidence or by defendant's evidence only, and jury is without right to reject such evidence, no instruction should be given on statutory presumption.

New Orleans & G. N. R. Co. v. Walden, 160 Miss. 103; Eastman-Gardner & Company v. Sumrall, 160 Miss. 793; L. & N. R. R. Co. v. Cuevas, 162 Miss. 521.

Osborn & Witty, of Greenwood, for appellee.

There may be cases in which the statutory presumption controls, although rebutting evidence has been given by the defendant; for example, when the plaintiff's evidence does not disclose the facts and circumstances of his injury and the jury has the right to, and does, reject the defendant's rebutting evidence.

New Orleans M. & C. R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; N. O. & G. N. R. R. Co. v. Waldon, 160 Miss. 116, 133 So. 241; Ry. Co. v. Nichols, 138 So. 364, 366.

The only eyewitness was the engineer, and his testimony was thoroughly discredited not only by its contradictory and improbable nature, but by the strong circumstantial evidence introduced by plaintiff, and the jury was wholly warranted in disregarding the engineer's testimony, which the jury undoubtedly did, and that being true, the facts and circumstances were left wholly unexplained, as plaintiff's testimony did not undertake to show anything regarding such facts and circumstances, except the circumstantial evidence of the physical facts. Therefore this case falls squarely within the rule laid down in the Walden case by the language quoted above.

OPINION

[164 Miss. 711] Anderson, J.

Appellee brought this action in the court of a justice of the peace of Montgomery county against appellant to recover the damages in the sum, of one hundred twenty-five dollars for the loss of a Jersey cow, alleged to have been killed by the negligent operation of one of appellant's locomotives. Appellee recovered a judgment in the sum of sixty-two dollars and fifty cents in the justice of the peace court; from that judgment appellant appealed to the circuit court, where there was a trial resulting in a judgment in the sum of fifty-six dollars [164 Miss. 712] for appellee; from that judgment appellant prosecutes this appeal.

The appellee was given two instructions applying the prima facie statute to the case, section 1580, Code 1930, which provides as follows: "In all actions against railroad corporations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of engines, locomotives or cars of any such railroad corporations or such other corporation, company, partnership or individual shall be prima-facie evidence of the want of reasonable skill and care of such railroad corporation, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employees of railroad corporations and of such other corporations, companies, partnerships and individuals."

The giving of those instructions is assigned and argued as error. There was no conflict in the evidence as to whether or not appellee's cow was killed by the running of one of appellant's locomotives. The evidence showed that fact conclusively; in fact, it was admitted by appellant. There was a conflict in the evidence as to the time the cow was killed and by which one of appellant's locomotives. Appellant's evidence was to the effect that she was killed by one of its gasoline motor drawn passenger trains going west about 10:45 a. m. on September 15, 1930;...

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3 practice notes
  • Murray v. Louisville & Nashville R. Co, 30986
    • United States
    • United States State Supreme Court of Mississippi
    • January 15, 1934
    ...the celebrated Turnipseed case handed down by the U. S. Supreme Court affirming the decision of this court. Columbus & G. Ry. v. Dunlap, 145 So. 646. [168 Miss. 516] Smith & Johnston, of Mobile, Ala., for appellee. It is elemental that in order to make a case of liability for a tort it must......
  • Chapman v. Chase Nat Bank, 32627
    • United States
    • United States State Supreme Court of Mississippi
    • April 12, 1937
    ...903; McLaren v. Hall, 26 Iowa 297; Adams-Newell Lbr. Co. v. Jones, 162 Miss. 517, 139 So. 315; Columbus & Greenville Ry. Co. v. Dunlap, 164 Miss. 709, 145 So. 646; N. O. & G. N. R. R. Co. v. Walden, 160 Miss. 102, 133 So. 241. We submit that the lower court erroneously refused to permit the......
  • Cherokee Mills v. Conner, 30367
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 1933
    ...further expense to me." On September 13, 1929, after the appellee had been advised that the account had been filed with justice of [164 Miss. 709] the peace G. F. Eaton for suit, he again wrote appellant's attorney as follows: "With reference to the Cherokee Mills account I want you to advi......
3 cases
  • Murray v. Louisville & Nashville R. Co, 30986
    • United States
    • United States State Supreme Court of Mississippi
    • January 15, 1934
    ...the celebrated Turnipseed case handed down by the U. S. Supreme Court affirming the decision of this court. Columbus & G. Ry. v. Dunlap, 145 So. 646. [168 Miss. 516] Smith & Johnston, of Mobile, Ala., for appellee. It is elemental that in order to make a case of liability for a tort it must......
  • Chapman v. Chase Nat Bank, 32627
    • United States
    • United States State Supreme Court of Mississippi
    • April 12, 1937
    ...903; McLaren v. Hall, 26 Iowa 297; Adams-Newell Lbr. Co. v. Jones, 162 Miss. 517, 139 So. 315; Columbus & Greenville Ry. Co. v. Dunlap, 164 Miss. 709, 145 So. 646; N. O. & G. N. R. R. Co. v. Walden, 160 Miss. 102, 133 So. 241. We submit that the lower court erroneously refused to permit the......
  • Cherokee Mills v. Conner, 30367
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 1933
    ...further expense to me." On September 13, 1929, after the appellee had been advised that the account had been filed with justice of [164 Miss. 709] the peace G. F. Eaton for suit, he again wrote appellant's attorney as follows: "With reference to the Cherokee Mills account I want you to advi......

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