New Orleans & North Eastern Railroad Company v. Thornton

• Decision Date: 27 February 1888
• Parties: NEW ORLEANS & NORTH EASTERN RAILROAD COMPANY v. T. M. THORNTON
• Court: Mississippi Supreme Court

3 So. 654

65 Miss. 256

NEW ORLEANS & NORTH EASTERN RAILROAD COMPANY v. T. M. THORNTON

Supreme Court of Mississippi

February 27, 1888

October 1887

APPEAL from the Circuit Court of Marion County, HON. S. H. TERRAL Judge.

This is an action brought by T. M. Thornton against the New Orleans and North Eastern Railroad Company for damages for the killing of his horse.

The evidence shows that the horse was grazing on the railroad "dump;" that the engineer saw him 30 or 40 yards ahead of his engine, when the horse began to run ahead of the engine and continued so to run on the "dump," which was not more than three or four feet high, for 150 or 200 yards, when he turned aside and ran across some "barrow" pits, and was afterwards found in the bed of a creek, 20 or 30 yards from the track jammed under some logs, and when taken out he was broken down in the loins, and died from such hurt soon afterwards.

The engineer did not check up the train or do anything to prevent the fright and injury of the horse. The effect of the evidence on the points of dispute is stated sufficiently in the opinion of the court. The jury found for the plaintiff and there was judgment in his favor. The defendant appealed.

Reversed and remanded.

Fewell Watkins & Brahan, for the appellant.

The plaintiff in the court below failed to prove a prima facie case, as required under § 1059, Revised Code of 1880.

There is no proof of injury inflicted by the running of appellant's cars on the horse sued for, and until such proof was made appellants were not required to offer any testimony, but were entitled to a verdict.

The theory of appellant, that the horse fell over the logs in the "dump" and broke his leg, is the correct one, or at least there is no proof to support any other; and the jury should have been told to find a verdict for the defendant in the court below. See I. C. R. R. Co. v. A. E Weathersby, 63 Miss. page 581; also, N. O. & N. E. R. R. v. W. E. Jones (not reported.)

S. B. Watts, for the appellee.

The sole question in this case is one of fact; was the testimony adduced by plaintiff in the court below sufficient proof of the injury to plaintiff's property to authorize a verdict in his favor. If that is so, then, under Sec. 1059, Code, such proof is prima facie evidence of the want of reasonable care, etc., on the part of defendant's servants, and, since there was no effort to overcome this presumption, the verdict was right, and that being the only point in the case, the judgment should be affirmed.

Calhoon...