Georgia Pacific Railway Co. v. Baird
| Decision Date | 05 December 1898 |
| Court | Mississippi Supreme Court |
| Parties | GEORGIA PACIFIC RAILWAY CO. v. JOHN R. BAIRD |
November 1898
FROM the circuit court of Sunflower county, HON. F. A. MONTGOMERY Judge.
Baird the appellee, was the plaintiff in the court below; the railway company and others were defendants there. The opinion sufficiently states the case.
Judgment reversed and case remanded.
Van Boddie and Yerger & Percy, for the appellant.
Frank Johnston, for the appellee.
The Georgia Pacific Railway Company and Spencer, Huidekoper & Foster, receivers, were, in April, 1894, sued by John R. Baird for negligently killing two horses, of the value of $ 100 each, the property of Baird. The written complaint filed with the justice of the peace alleged that the killing of the horses occurred in August or September, 1893. A trial in the justice court, in April, 1894, resulted in a judgment for the plaintiff, whereupon the defendants appealed to the circuit court, and there a trial was had in April, 1898. At the conclusion of the evidence the court instructed the jury to find for the plaintiff. The evidence showed that the two horses belonging to the appellee were killed in the fall of 1894, by a train running on the line of railroad between Greenville and Winona, near Baird station.
The defendants insisted that the peremptory instruction was wrong, for two reasons: First, because the evidence showed that the suit was instituted several months before the horses were killed, and, secondly, because there was no evidence tending to show that the horses were killed by a train operated by the defendants. Each of the three witnesses in the case testified that the horses were killed in the fall of 1894, and as to the infliction of the injury by the defendants the only evidence was that of Walter McLain, who stated he was then, April, 1898, engaged in business as a railroad conductor for the Southern road, and was in the same business in the fall of 1894, and that he was running the accommodation train between Greenville and Winona when the horses claimed by Baird were killed.
When the objections of defendants to the giving of the peremptory instructions were stated, the record recites that "counsel for plaintiff stated to the court that he had inadvertently questioned the witnesses as to the fall of 1894, when the bill of particulars filed showed that the stock were killed in...
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...Constructors, Inc. v. Marine Indust. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983) (quoting Georgia Pac. Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195, 196 (1898)). Thus, in the absence of satisfying the statutory notice requirement, no right of action exists and, therefore, no "d......
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Shaw v. Shaw, 89-CA-32
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