Hamlin v. Yazoo & M.V.R. Co.

• Decision Date: 10 December 1894
• Citation: 72 Miss. 39,16 So. 877
• Parties: J. F. HAMLIN v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO
• Court: Mississippi Supreme Court

16 So. 877

72 Miss. 39

J. F. HAMLIN v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO

Supreme Court of Mississippi

December 10, 1894

FROM the circuit court of Tunica county. HON. R. W. WILLIAMSON Judge.

Action by appellant against appellee. From a judgment in favor of defendant, this appeal is prosecuted. The opinion states the facts.

Section 1808, code 1892, provides that in actions against railroad companies for damage to persons or property, proof of injury inflicted by the running of locomotives or cars of the defendant shall be prima facie evidence of the want of proper skill and care on the part of the company in reference to the injury.

Affirmed.

F. A Montgomery, Jr., for appellant.

I submit that the verdict is wrong on the proof, and therefore a new trial should have been granted. Bedford v. Railroad Co., 65 Miss. 385.

I especially urge that the third instruction for defendant is erroneous. Its effect was absolutely to withdraw from the jury the prima facie case which attached upon proof of the injury. The plaintiff was entitled to the benefit of this presumption throughout the whole case. An instruction should not assume disputed facts as proven. Myrick v Wells, 52 u Miss. 149; French v. Sale, 63 Ib., 386.

It should have been left to the jury to say whether or not the presumption of negligence was rebutted. Railroad Co. v. Phillips, 64 Miss. 693. In Bourgeois v. Railroad Co., 66 Miss. 3, it was said that when the circumstances attending the injury are shown, the case must be determined on the facts, and not upon presumption; but it was not meant that the presumption is to be withdrawn from the consideration of the jury. This presumption, like that of innocence in a criminal case, continues throughout the trial, and is to be disregarded only when it is overthrown by proof, as to which the jury must be the judge. Plaintiff is entitled to have the jury instructed as to this presumption, and it was not proper for the court to instruct that the facts in the case were proven.

Mayes & Harris, for appellee.

This judgment should be affirmed, if for no other reason than for the fact that it is a record breaker, and stands as a curiosity in modern jurisprudence, in that it is a mule case in which a jury has decided in favor of a railroad company.

But, aside from this, it should be affirmed because there was no error of law committed. The third instruction, which is complained of, is fully supported by authority. 62 Miss. 170, 503; 64 Ib. , 693; 66 Ib., 3.

A simple question of fact was involved, and the verdict is supported by the evidence.

OPINION

COOPER, C. J.

This is a suit brought by appellant against the appellee to recover the value of two mules killed by a train of the appellee. The circumstances of the killing were fully testified to by eye witnesses for the plaintiff and by the servants of the company in charge of the train and other eye witnesses...