Jordan v. Gulf & S.I.R. Co.

• Decision Date: 20 May 1912
• Citation: 58 So. 595,102 Miss. 21
• Parties: T. N. JORDON v. GULF & SHIP ISLAND RAILROAD COMPANY
• Court: Mississippi Supreme Court

58 So. 595

102 Miss. 21

T. N. JORDON v. GULF & SHIP ISLAND RAILROAD COMPANY

Supreme Court of Mississippi

May 20, 1912

APPEAL from the circuit court of Harrison county, HON. J. A LEATHERS, Special Judge.

Suit by T. N. Jordon against the Gulf & Ship Island Railroad Company et al. From a judgment for defendant, plaintiff appeals.

The facts disclosed by the record are, in substance, as follows Appellant purchased from one McSwain forty head of oxen at Hattiesburg, Miss., and instructed McSwain to load them on two cars of the Gulf & Ship Island Railroad. The oxen were loaded on said cars October 11, 1910, about 5 p. m. They were shipped by way of the Gulf & Ship Island Railroad to Jackson Miss., arriving at 9:40 a. m., October 12th. The Illinois Central Railroad receipted the Gulf & Ship Island for said oxen "in good condition." They were shipped out of Jackson by way of the Illinois Central Railroad at 3:20 p m., October 12th, arriving at Durant, on the Illinois Central, at 10:30 p. m., at which point they were taken out of the cars, fed and watered, and put back in the cars at 12 p. m., and left Durant at 7:40 a. m., October 13th, arriving at the destination, McAdams, at 8:45 the same morning.

The oxen were all injured on the journey. Immediately after being unloaded several of them died, and others died within a few days. Those remaining were unfit for work, and were sold for a little over three hundred dollars; the original purchase price being over thirteen hundred dollars. Jordan brought suit against the Gulf & Ship Island Railroad and the Illinois Central Railroad for damages. The court gave a peremptory instruction for the Gulf & Ship Island Railroad, and submitted the case against the Illinois Central Railroad to a jury, who found for the defendant.

Over the objection of the plaintiff, the defendant was allowed to show that Jordan had not paid for the oxen, but still owed about twelve hundred dollars and had executed a note for that amount. This action of the court, together with the granting of certain instructions hereafter set up, is assigned as error on appeal.

The instructions complained of are as follows:

(3) "The court instructs the jury for the defendants that the plaintiff cannot recover for the death of any ox, unless you believe from the evidence that such ox died solely through the fault of the Illinois Central Railroad Company and if you believe from the evidence that any ox died through the fault or negligence of the plaintiff, or that such fault or negligence, if any, contributed proximately to the death of such ox, you should not assess any damage against the defendants for the loss of such ox."

(4) "The court instructs the jury for the defendants that they cannot assess any damage against the defendant Illinois Central Railroad Company for the death of any ox after it was sold and delivered by the plaintiff, if any."

(8) "The court instructs the jury for the defendants that before the plaintiff can recover damages in any amount against the defendants it is necessary for him to establish, by a preponderance of the evidence, (1) that the oxen were not damaged when delivered to the railroad company for shipment, and were then in good condition to make the journey to McAdams, without injury, if the defendants should transport, them and care for them with due care, under all the circumstances shown by the evidence; (2) that the oxen were damaged when they arrived at McAdams, over and above the injury or damage that would necessarily be caused to a shipment of the kind and character of oxen that these were, and in their condition, in making the trip by rail that these oxen made; (3) that the plaintiff was the owner of the oxen."

(10) "The court instructs the jury for the defendants that, if they believe from the evidence that one or more of the oxen were injured while being transported to McAdams, and that said injuries were proximately caused by the physical condition of such oxen at the time they were delivered to the railroad company at Hattiesburg for shipment, without any negligence on the part of the defendants, they should find for the defendants."

(12) "The court instructs the jury for the defendants that, if they believe from the evidence that any of said oxen were injured while in transit from Jackson to McAdams, and if they further believe that said injuries were proximately due to their condition when delivered to the Gulf & Ship Island Railroad Company for shipment, and not to any negligence or lack of reasonable care and prudence of the defendant Illinois Railroad Company in transporting and caring for them, you should find for the defendants."

(14) "The court instructs the jury that the defendant, the Illinois Central Railroad Company, is not liable for any injuries to said oxen, if you believe from the evidence that it furnished a car suitable and in good condition for the purpose of transporting the oxen, and used reasonable care and diligence, under all the circumstances, in carrying them from Jackson to McAdams; and the burden of proof is on the plaintiff to satisfy you, by a preponderance of the evidence that such injuries, if any at all were suffered by the oxen, or any of them, were received between the time they were received for...