Columbus & G. Ry. Co. v. Dunlap

• Decision Date: 30 January 1933
• Docket Number: 30319
• Citation: 145 So. 646,164 Miss. 709
• Parties: COLUMBUS & G. RY. CO. v. DUNLAP
• Court: Mississippi Supreme Court

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).

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

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 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; while appellee's evidence tended to show that she was killed on that date about four o'clock in the afternoon by one of appellee's steam drawn passenger trains going west.

The testimony in the case was substantially as follows: Appellee testified that he lived about a quarter of a mile from the place where the cow was killed. That about four o'clock P. M. on September 15, 1930, one of appellant's passenger trains drawn by a steam engine went west from Winona towards Greenwood. That while the train was passing, when it reached a point about where the cow was killed, he heard the whistle blowing continuously for some fifteen to twenty seconds. That from the noise of the train it appeared that it did not slacken its speed. That he thought from the blowing of the whistle some stock must have been on the track. That about an hour after he heard the train pass he went to the scene and found that his cow had been killed. That she was lying about eight or ten feet north of the track. That he kept his stock under fence but in some way the cow had broken out. That he looked over the scene and found that from the point where the cow lay back eas for a distance of fifty-one yards there were blood stains and hair on the track, and that from where the blood stains began, going back east one hundred and four yards, he observed the cow's tracks between the rails, and that these tracks were fresh and indicated that the cow was running from east to west. That the blood on the track was fresh. That he had had extensive experience in butchering live stock and knew from that experience whether blood was fresh or stale. That one hundred and sixty-one yards east of where the cow's tracks began a switch track began, and from the west end of the switch track for a distance of a half mile east there was a clear view down the track to where the cow's body was found. That the track between these two points was practically straight.

Cooksie a witness for appellee, testified that on the day the cow was killed he was going along appellant's railroad track, going east toward Winona; that about one-fourth mile from where he later found appellee's cow he met one of appellant's steam drawn passenger trains going west; that after the train passed he walked on and found the cow lying by the side of the track; that this was about four o'clock in the afternoon of September 15, 1930; that from the point where the cow lay blood stains, hair, and skin showed along the track for about fifty yards, and that where the blood stains stopped the cow's tracks showed between the rails for about one hundred yards east; and that the cow's tracks...