Mississippi Central R. Co. v. A. T. Morrison

• Decision Date: 08 June 1914
• Citation: 107 Miss. 300,65 So. 275
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL R. CO. v. A. T. MORRISON

65 So. 275

107 Miss. 300

MISSISSIPPI CENTRAL R. CO. v. A. T. MORRISON

Supreme Court of Mississippi

June 8, 1914

March 1914

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Suit by A. T. Morris against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

H. S Buescher, for appellant.

The only conclusion that this court can reach, after a careful inspection of all the testimony in this case, is that this was an accident which could not have been avoided by the exercise of reasonable care on the part of the employees of the railroad company, and that, therefore, the verdict should have been in its favor. M. & O. v. Holliday, 79 Miss. 279, 30 So. 820.

Currie & Currie, for appellees.

We cite the case of Mobile & G. R. Co. v. Cadwell, 3 So 445. Proof of the fact of the injury and that it was inflicted by a moving train belonging to the defendant, makes out a prima facie case for the plaintiff; and the onus is then devolved on the defendant to overcome the presumption of negligence by proof of the circumstances attending the killing. We cite the case of New Orleans & N.E. R. R. Co. v. Brooks, and, by the way, this opinion appears to have been written by the able counsel of the appellant, reported in the 38 So. 40. Where, in the action for death, it was shown that the injury was inflicted by the running of defendant's train, the statutory presumption that the injury was the result of the defendant's negligence could only be rebutted by clear proof, by defendant, of facts exonerating it from blame. Many other cases could be cited sustaining the proposition that the burden is on the defendant in such case to exonerate itself from negligence. One other case we will cite as persuasive of this rule, and that is the case of Mobile & Ohio R. R. Co. v. Tupelo Furniture Manufacturing Co., reported in 7 Southern Reporter, page 297. In this case it was held that where goods, which had been delivered to one carrier in good condition and were delivered by another in bad condition, the burden is on the delivering carrier to exculpate itself from liability by showing that the injury did not occur by its fault or default.

Instruction No. 1, granted the plaintiff by the court, is then, certainly correct, in so far as it places the burden on the defendant to exonerate itself. Now, the nice point raised is that the instruction is erroneous because it tells the jury that if the testimony for the plaintiff and the defendant is "equally balanced, then the law is for the plaintiff and the jury should so find. By reason, this must be true, because first, in that state of the testimony, the defendant has not exonerated itself; in the second place, any other rule would at once destroy the prima facie case and the presumption of negligence created by the statute, and it has been repeatedly held that this presumption alone is sufficient to support a verdict for a plaintiff in this sort of case.

We cite the case of Vicksburg & M. R. Co. v. Phillips, Adm's, reported in the Southern Reporter, page 537. "But it cannot be said to be erroneous to instruct the jury that the law presumes wrong and imputes blame from the fact of injury inflicted by the running of locomotive or cars; for that is precisely what section 1059 does. The same decision contains this language which is directly on the nice point raised in counsel's brief. If the evidence showing the injury rebuts the presumption, well; but if it does not, the presumption created by law from the fact of the injury in this mode is to stand and control.

This instruction is a practical copy of that complained of in the case of Kansas City M. & B. R. Co. v. Doggett, and upheld by this court, reported in 7 Southern Reporter, page 278. The language of that instruction is in part, and the burden of proof is upon the defendant to satisfy the jury, etc. Counsel should not become disgruntled because of the state of the law and vent his spleen therefor by imputations against the jury who tried this case, and indeed, all other juries who try cases against railroads. We believe the average juror is fair minded and honest and renders a verdict in response to his conscience and judgment, after a fair and impartial consideration of the law and evidence. Certainly the imputation could not reach and bias or corrupt the trial judge,...