Louisville, New Orleans And Texas Ry. Co. v. Smith

• Decision Date: 27 January 1890
• Citation: 67 Miss. 15,7 So. 212
• Court: Mississippi Supreme Court
• Parties: LOUISVILLE, NEW ORLEANS AND TEXAS RY. CO. v. HENRY SMITH

7 So. 212

67 Miss. 15

LOUISVILLE, NEW ORLEANS AND TEXAS RY. CO. v. HENRY SMITH

Supreme Court of Mississippi

January 27, 1890

October 1889

FROM the circuit court of Tunica county, HON. GEORGE WINSTON Judge.

This suit was begun by appellee in the justice court to recover the value of a mule killed by the engine of appellant. Apart from the evidence of value and the fact of killing, the only testimony in the case was that of the plaintiff and the engineer. The former testified that he found his mule after it was struck lying near the track of appellant's railroad. There were blood-spots on the track for about one hundred yards south of where the mule was found, as if it had been run over and dragged. Beyond where these signs stopped there were tracks extending another one hundred yards. These tracks must have been made by mules running, for the ground was too hard and dry for them to have been made by mules walking. Plaintiff's mule was running out with three others, and from the tracks on the railroad plaintiff could not say whether one or more mules were running, or which way they were going. The tracks came upon and extended about fifty yards on the track and then went off along the embankment, and then back on the track again, and then the marks of blood began.

The engineer testified that when the mule was struck it was at night, and the train was running about twenty-three miles an hour. The train consisted of fifteen loaded and thirty-five empty freight cars. He was at his post on the engine, and when he first discovered the mule it was either on the track or just coming upon it, about ten yards ahead of the engine and the animal ran only four or five yards before being struck by the engine. He sounded the cattle alarm when he saw the mule, but made no effort to stop, as there was not time to apply the breaks.

The court refused to grant for the plaintiff the following charge:--

"3. The jury are instructed that where the R. R. Co. is shown to have killed stock there is a prima facie presumption of negligence on its part, but that when the facts and circumstances of the killing are shown they cannot find for the plaintiff, unless those facts and circumstances show negligence on the part of the company."

The court also refused to give a peremptory instruction to the jury to find for the defendant. The case was submitted to the jury and resulted in a verdict for plaintiff. Motion for new trial was overruled, and defendant appealed.

Reversed and remanded.

W. P. &amp J. B. Harris, for the appellant.

The peremptory instruction for defendant ought to have been granted....